In the recently decided appellate case, In re Estate of Marion Young Tait, the third district of the Appellate Court of Illinois was faced with a trial court that removed a guardian of a disabled person without substantially complying with the codified procedure in section 23-3 of the Probate Act of 1975. (755 ILCS 5/23-2 (West 2014).[1]
The guardian of the estate, the disabled person’s daughter, appeared to have some trouble filing an annual report and annual accounting report. The guardian ad litem objected to the annual accounting reports and requested a pre-trial conference to discuss those reports. The pre-trial conference took place the same day that the guardian ad litem made the request, which occurred at the hearing for approval of the accounting reports.
At the pre-trial conference, the Judge determined that the daughter should be removed as guardian of the estate. No evidence was provided showing that the daughter was given the opportunity to participate in the hearing.
On appeal, the appellate court determined that the trial court must “substantially comply” with the procedure set forth in 23-3 of the Probate Act. The procedure requires the issuance of a “citation to remove” directing the guardian to show why she should not be removed as guardian of the estate. This hearing on the citation to remove must be fair, which at minimum requires reasonable notice of the hearing and a fair opportunity for the guardian to defend against removal.
The appellate court determined that the court did not provide proper notice of the hearing (since the hearing on removal appears to have been spontaneous) and the guardian was not given the opportunity to respond since no evidence is on record demonstrating that she was permitted to participate in the hearing.
The appellate court ruled that the trial court did not substantially comply with 23-3 of the Probate Act and remanded the matter to the trial court for a removal hearing.
[1] http://www.illinoiscourts.gov/Opinions/AppellateCourt/2017/3rdDistrict/3150834.pdf
If you have any questions regarding guardianships, please contact Matlin Law Group, P.C. at 1-847-770-6600.
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