{ "id": 1224774, "name": "In re MARRIAGE OF BURGESS (Donald J. Burgess, Appellant, v. Sharron M. Burgess, Appellee)", "name_abbreviation": "Burgess v. Burgess", "decision_date": "2000-02-17", "docket_number": "No. 86974", "first_page": "270", "last_page": "285", "citations": [ { "type": "official", "cite": "189 Ill. 2d 270" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "174 Ill. 2d 335", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223612 ], "year": 1996, "pin_cites": [ { "page": "347", "parenthetical": "\"guardian only acts as the hand of the court and is at all times subject to the court's direction in the manner in which the guardian provides for the care and support of the disabled person\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0335-01" ] }, { "cite": "1 la- 17", "category": "reporters:state", "reporter": "Iowa", "opinion_index": 0 }, { "cite": "174 Ill. 2d 63", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223627 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-2d/174/0063-01" ] }, { "cite": "188 Ill. 2d 168", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 535933 ], "year": 1999, "pin_cites": [ { "page": "172-73" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0168-01" ] }, { "cite": "275 Ill. App. 3d 769", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 906789 ], "year": 1995, "pin_cites": [ { "parenthetical": "a guardian may authorize the administration of electroconvulsive therapy to a ward upon a clear and convincing showing that the ward would have wanted this treatment" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/275/0769-01" ] }, { "cite": "161 Ill. 2d 200", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783189 ], "year": 1994, "pin_cites": [ { "parenthetical": "a guardian may consent to the administration of psychotropic medication on behalf of a ward if a court finds, after considering the wishes of the recipient, that there is clear and convincing proof that the administration of the medicine outweighs its potential harmful effects" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0200-01" ] }, { "cite": "182 Ill. 2d 262", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 864528 ], "year": 1998, "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/182/0262-01" ] }, { "cite": "182 Ill. 2d 359", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 864532 ], "year": 1998, "pin_cites": [ { "page": "368" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/182/0359-01" ] }, { "cite": "750 S.W2d 837", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9991215 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "839" }, { "page": "839" } ], "opinion_index": 0, "case_paths": [ "/sw2d/750/0837-01" ] }, { "cite": "762 P.2d 1051", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1988, "pin_cites": [ { "page": "1052" } ], "opinion_index": 0 }, { "cite": "93 Or. App. 463", "category": "reporters:state", "reporter": "Or. App.", "case_ids": [ 4418071 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "466" }, { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/or-app/93/0463-01" ] }, { "cite": "755 S.W2d 5", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 11326988 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/sw2d/755/0005-01" ] }, { "cite": "118 N.M. 117", "category": "reporters:state", "reporter": "N.M.", "year": 1994, "pin_cites": [ { "page": "120" } ], "opinion_index": 0 }, { "cite": "139 Ill. App. 3d 763", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3569211 ], "year": 1985, "pin_cites": [ { "page": "775-76" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0763-01" ] }, { "cite": "446 N.E.2d 1151", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "page": "1156" } ], "opinion_index": 0 }, { "cite": "4 Ohio App. 3d 142", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 6711991 ], "year": 1982, "pin_cites": [ { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/ohio-app-3d/4/0142-01" ] }, { "cite": "51 N.E.2d 921", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1943, "pin_cites": [ { "page": "924" } ], "opinion_index": 0 }, { "cite": "291 N.Y. 181", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2058765 ], "year": 1943, "pin_cites": [ { "page": "188" } ], "opinion_index": 0, "case_paths": [ "/ny/291/0181-01" ] }, { "cite": "453 A.2d 572", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "574" }, { "page": "574" } ], "opinion_index": 0 }, { "cite": "187 N.J. Super. 55", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 884409 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "59" }, { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/nj-super/187/0055-01" ] }, { "cite": "65 Ill. App. 3d 140", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3326792 ], "year": 1978, "pin_cites": [ { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0140-01" ] }, { "cite": "168 Ill. 339", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3187624 ], "year": 1897, "pin_cites": [ { "page": "341-42", "parenthetical": "guardian defending dissolution of marriage proceedings" } ], "opinion_index": 0, "case_paths": [ "/ill/168/0339-01" ] }, { "cite": "191 Ill. 280", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3246051 ], "year": 1901, "pin_cites": [ { "page": "288", "parenthetical": "guardian seeking annulment of a ward's marriage" } ], "opinion_index": 0, "case_paths": [ "/ill/191/0280-01" ] }, { "cite": "134 Ill. App. 3d 788", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3636105 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "791" }, { "page": "791", "parenthetical": "guardian has authority to consent to abortion on behalf of ward" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0788-01" ] }, { "cite": "102 Ill. App. 3d 276", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3074548 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "277-78" }, { "page": "277-78", "parenthetical": "guardian has authority to consent to adoption of adult ward" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0276-01" ] }, { "cite": "137 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251477 ], "weight": 5, "year": 1990, "pin_cites": [ { "page": "16" }, { "page": "16" }, { "page": "17-18" }, { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/137/0001-01" ] }, { "cite": "133 Ill. 2d 33", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260643 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "45-46" }, { "page": "45-46" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/133/0033-01" ] }, { "cite": "115 Ill. 2d 201", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3180242 ], "weight": 7, "year": 1986, "pin_cites": [ { "page": "202-03" }, { "page": "203" }, { "page": "204" }, { "page": "205" }, { "page": "206" }, { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/115/0201-01" ] }, { "cite": "302 Ill. App. 3d 807", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1352847 ], "weight": 2, "pin_cites": [ { "page": "808" }, { "page": "812" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/302/0807-01" ] }, { "cite": "93 Ill. 2d 190", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3102094 ], "weight": 5, "year": 1982, "pin_cites": [ { "page": "201" }, { "page": "204" }, { "page": "205-06" }, { "page": "206" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/93/0190-01" ] }, { "cite": "186 Ill. 2d 291", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243872 ], "year": 1999, "pin_cites": [ { "page": "295", "parenthetical": "McMorrow, J., writing" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/186/0291-01" ] }, { "cite": "171 Ill. 2d 282", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57335 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "289" }, { "page": "289" }, { "page": "290-91" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/171/0282-01" ] } ], "analysis": { "cardinality": 993, "char_count": 28869, "ocr_confidence": 0.769, "pagerank": { "raw": 7.729661670452882e-08, "percentile": 0.45467785959721974 }, "sha256": "6082b11275af7943be64195dc6cfd5fea6d7bd018bd857a14ef683da63689787", "simhash": "1:cdbdff935900ddc8", "word_count": 4788 }, "last_updated": "2023-07-14T14:37:47.405500+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF BURGESS (Donald J. Burgess, Appellant, v. Sharron M. Burgess, Appellee)." ], "opinions": [ { "text": "JUSTICE McMORROW\ndelivered the opinion of the court;\nThe issue presented in this case is whether the plenary guardian of a disabled adult has standing to proceed with a dissolution of marriage action filed by the ward prior to the adjudication of the ward\u2019s disability. We hold that a plenary guardian may continue a dissolution action on behalf of a ward in these circumstances.\nBACKGROUND\nThe relevant facts in this case are undisputed. Donald Burgess and Sharron Burgess were married in 1978. In April 1996, Donald filed a petition for dissolution of their marriage. In addition, he filed a petition for an emergency order of protection against Sharron, which the circuit court granted.\nIn May 1997, Donald\u2019s sister, Virginia Cronk (Crank), filed a petition for appointment of guardian for a disabled person, in which she alleged that Donald was incapable of making or communicating decisions regarding the care of his person and that he was unable to manage his financial affairs. Cronk requested that the circuit court adjudge Donald a disabled person and that she be appointed guardian of his person and estate. In June 1997, the circuit court appointed Cronk guardian of Donald\u2019s person and estate.\nIn July 1997, Sharron filed a motion to dismiss Donald\u2019s dissolution action on the ground that Cronk had no standing to continue this action on behalf of Donald. The circuit court denied her motion but, pursuant to Sharron\u2019s request, certified the following question for review by the appellate court under Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)): \u201cCan a disabled adult\u2019s plenary guardian (a guardian of both the individual\u2019s estate and person) continue a dissolution of marriage action originally filed by the disabled adult prior to the filing of a petition for guardianship and prior to a finding of disability?\u201d 302 Ill. App. 3d 807, 808.\nThe appellate court answered the certified question in the negative. 302 Ill. App. 3d at 812. The appellate court found that its holding was mandated by this court\u2019s decision in In re Marriage of Drews, 115 Ill. 2d 201 (1986). According to the appellate court, Drews held that, absent a specific statute authorizing a guardian to initiate or maintain a dissolution of marriage proceeding for a ward, a guardian is without standing to do so. The appellate court found no such statutory authority and, therefore, concluded that Cronk was without standing to prosecute Donald\u2019s dissolution action. We granted Donald\u2019s petition for leave to appeal. 177 Ill. 2d R. 315.\nANALYSIS\nSection 11a \u2014 18 of the Probate Act of 1975 (755 ILCS 5/lia \u2014 18 (West 1996)) sets forth the powers of a guardian of the estate. The powers of a guardian of the person are contained in section 11a \u2014 17 of the Probate Act (755 ILCS 5/lia \u2014 17 (West 1996)), which describes the guardian\u2019s authority to make personal decisions on behalf of a ward as follows:\n\u201cTo the extent ordered by the court and under the direction of the court, the guardian of the person shall have custody of the ward and the ward\u2019s minor and adult dependent children; shall procure for them and shall make provision for their support, care, comfort, health, education and maintenance, and professional services as are appropriate ***. The guardian shall assist the ward in the development of maximum self-reliance and independence.\u201d 755 ILCS 5/lia \u2014 17(a) (West 1996).\nDonald argues that the appellate court erred in holding that a guardian has no standing to continue a ward\u2019s action for dissolution of marriage because the authority to do so is implicit in the language of section 11a \u2014 17. Sharron responds that, under this court\u2019s decision in Drews, a guardian may not initiate or continue a ward\u2019s dissolution proceeding unless that power is specifically enumerated in a statute. Sharron asserts that, because neither section 11a \u2014 17 nor any other statute expressly authorizes a guardian to continue a dissolution action previously filed by a ward, the appellate court was correct in denying Cronk standing to pursue Donald\u2019s dissolution action.\nTherefore, our initial inquiry in this case is whether an express grant of statutory authority is necessary for a guardian to continue a ward\u2019s dissolution action. In other cases involving guardians\u2019 authority to make personal decisions on behalf of a ward, Illinois courts have held that the guardians may make such decisions under section 11a \u2014 17 even though the power to do so is not specifically enunciated. For example, courts have held that guardians may decide on behalf of a ward to withdraw artificial nutrition and hydration (see In re Estate of Longeway, 133 Ill. 2d 33, 45-46 (1989); In re Estate of Greenspan, 137 Ill. 2d 1, 16 (1990)), may consent to an adult ward\u2019s adoption (In re Adoption of Savory, 102 Ill. App. 3d 276, 277-78 (1981)), and may consent to an abortion on behalf of a disabled ward (In re Estate of D.W., 134 Ill. App. 3d 788, 791 (1985)).\nIn Drews, however, this court decided that, with respect to the decision to initiate dissolution of marriage proceedings, a guardian must have specific statutory authority. The ward\u2019s mother in Drews was named guardian of her son\u2019s person and estate after her son became disabled as the result of a severe head injury. Following her appointment as guardian, the mother filed a dissolution of marriage action on her son\u2019s behalf. The son\u2019s wife filed a motion to dismiss the action on the basis that the mother did not have standing to bring the action. Drews, 115 Ill. 2d at 202-03.\nIn determining whether the mother had standing to initiate a proceeding for dissolution of her son\u2019s marriage, the Drews court examined case law from other jurisdictions. The court found that a majority of jurisdictions which had considered the issue had held that, \u201cabsent statutory authorization, a guardian cannot maintain an action, on behalf of a ward, for the dissolutian of a ward\u2019s marriage.\u201d Drews, 115 Ill. 2d at 203. This court observed that, in previous cases involving different issues, it had recited this majority rule with approval. Drews, 115 Ill. 2d at 204, citing Pyott v. Pyott, 191 Ill. 280, 288 (1901) (guardian seeking annulment of a ward\u2019s marriage); Iago v. Iago, 168 Ill. 339, 341-42 (1897) (guardian defending dissolution of marriage proceedings). The court concluded that Illinois follows the majority rule that, \u201cabsent statutory authorization, a guardian cannot institute an action, on behalf of a ward, for the dissolution of the ward\u2019s marriage.\u201d Drews, 115 Ill. 2d at 205.\nThe Drews court then examined sections 11a \u2014 17 and 11a \u2014 18 of the Probate Act to determine whether there is statutory authority for a guardian to bring a dissolution action. The court found no such authority in section 11a \u2014 18 of the Probate Act because this provision grants guardians standing to represent a ward only with respect to legal proceedings concerning the ward\u2019s estate. Likewise, there is nothing in section 11a \u2014 17 that \u201cgrants the guardian standing to maintain or defend any legal proceeding.\u201d (Emphasis in original.) Drews, 115 Ill. 2d at 206. This court then concluded in Drews that, given the absence of statutory authority, the mother lacked standing to \u201cmaintain an action for the dissolution of her ward\u2019s marriage.\u201d Drews, 115 Ill. 2d at 207.\nAlthough the issue in the instant case may be similar to that in Drews, we find that the strict rule adopted in Drews, requiring express statutory authority for a guardian to act, should not be applied in this case. Donald correctly argues that Drews is factually distinguishable from his case. In addition, the policy reasons underlying the Drews holding do not support mandating specific statutory authority for a guardian to continue a dissolution proceeding, rather than initiate a dissolution proceeding on behalf of a ward.\nThe issue presented in the case currently before us was not decided in Drews. Whereas Drews involved a guardian\u2019s power to initiate dissolution of marriage proceedings on behalf of a ward, Donald\u2019s case concerns a guardian\u2019s authority to continue a ward\u2019s dissolution of marriage action. Based on references in Drews to \u201cmaintaining\u201d a dissolution action, Sharron and the appellate court interpret Drews as holding that a guardian may not institute or continue a dissolution action without express statutory authority. To \u201cmaintain\u201d a legal action may mean either \u201cto commence\u201d or \u201cto continue\u201d the action. See Black\u2019s Law Dictionary 953 (6th ed. 1990); Amman Food & Liquor, Inc. v. Heritage Insurance Co., 65 Ill. App. 3d 140, 146 (1978). In Drews, this court used the words \u201cinitiate\u201d and \u201cmaintain\u201d interchangeably. In the factual context of Drews, however, it is clear that the holding in that case is limited to a guardian\u2019s authority to commence a dissolution action on behalf of a ward.\nThe factual differences between Drews and the instant case are important because the policy reasons underlying the Drews holding are particular to the facts in that case and are inapposite in the circumstances presented by the instant case. In Drews, this court adopted the strict rule, followed by a majority of jurisdictions, that express statutory authority is necessary for a guardian to initiate dissolution proceedings on behalf of a ward. Although the rationale for this rule is not discussed in Drews, it is explained by other courts deciding cases involving this rule. According to these courts, the need for express statutory authority is based on policy reasons. These policy reasons are primarily premised on the personal nature of the decision to terminate a marriage (see, e.g., In re Jennings, 187 N.J. Super. 55, 59, 453 A.2d 572, 574 (1981); Mohrman v. Kob, 291 N.Y. 181, 188, 51 N.E.2d 921, 924 (1943)) and the inability to determine with certainty that the ward would have wanted to end the marriage (see Jennings, 187 N.J. Super, at 59, 453 A.2d at 574; Boyd v. Edwards, 4 Ohio App. 3d 142, 146, 446 N.E.2d 1151, 1156 (1982)). In In re Marriage of Drews, 139 Ill. App. 3d 763, 775-76 (1985), the court noted the absence of any facts indicating that the ward would have wanted to seek a dissolution of his marriage. As one court observed, \u201cmajority jurisdictions choose an absolute bar as the lesser of two evils, protecting the possibility that the incompetent spouse might elect to remain married if competent, even if it effectively prevents the incompetent spouse from ending the marriage while under the adjudication of incompetency.\u201d Nelson v. Nelson, 118 N.M. 117, 120, 878 E2d 335, 338 (App. 1994).\nWhile the risk that a guardian may be acting contrary to a ward\u2019s wishes may support the rule that a guardian\u2019s power to initiate a dissolution proceeding must be specified by the legislature, this policy consideration does not justify requiring express statutory authority for a guardian to continue a ward\u2019s dissolution proceeding. When the ward has filed an action for dissolution of his or her marriage, the ward\u2019s desire and intention to end the marriage is clear. In the case at bar, the record reflects that Donald filed a petition to dissolve his marriage 14 months prior to his being adjudicated incompetent. Thus, the added protection afforded by the rule requiring specific statutory authority for a guardian to represent a ward in a dissolution proceeding is not necessary. Because the facts and analysis in Drews demonstrate that it is inapplicable to the circumstances of the instant case, we determine that Drews does not prohibit a guardian from continuing a ward\u2019s dissolution proceeding absent specific statutory authorization.\nCourts in other jurisdictions have also refused to require that a guardian\u2019s power to continue a dissolution action filed by a ward be enumerated in a statute. Instead, our research indicates that those courts that have considered this issue have held that a guardian\u2019s authority to continue a dissolution action on behalf of a ward may be implied from state statute. See, e.g., In re Parmer, 755 S.W2d 5 (Mo. App. 1988); In re Ballard, 93 Or. App. 463, 466, 762 P.2d 1051, 1052 (1988); Wahlenmaier v. Wahlenmaier, 750 S.W2d 837, 839 (Tex. Ct. App. 1988). For example, in Wahlenmaier, the court held that a guardian could continue a dissolution action on behalf of a ward based on a state statute that gave mentally ill individuals the same constitutional and statutory rights as the nondisabled. The Wahlenmaier court concluded that\n\u201csince this statutory provision gives every person who has a mental incapacity every right and privilege guaranteed by our constitution and laws, it must include a right to obtain a divorce. It follows that, since the person may not be able to act for themselves, a court appointed guardian ad litem or next friend must be able to exercise those rights for a mentally ill person.\u201d Wahlenmaier, 750 S.W2d at 839.\nSimilarly, the court in Ballard relied on a general statute that provided that, in any court proceeding in which an incapacitated person was a party, that person should appear by his or her conservator or guardian. The Ballard court decided that, because no different procedure is specified for dissolution proceedings, a guardian has the authority to continue a dissolution proceeding on behalf of a ward. Ballard, 93 Or. App. at 465, 762 E2d at 1052.\nLike the courts in Ballard and Wahlenmaier, we find in the case at bar that a guardian\u2019s authority to continue a dissolution action on behalf of a ward may be implied from section 11a \u2014 17. In construing a statute, we must ascertain and give effect to the intention of the legislature. See Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359, 368 (1998). In performing this inquiry, we begin with the language of the statute. See Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 270 (1998).\nSection 11a \u2014 17 of the Erobate Act authorizes a guardian to provide for the \u201csupport, care, comfort, health, education and maintenance\u201d of a ward and requires the guardian to \u201cassist the ward in the development of maximum self-reliance and independence.\u201d 755 ILCS 5/lia \u2014 17(a) (West 1996). Under this language, guardians have been, permitted to make very personal decisions for wards. See, e.g., In re Estate of D.W., 134 Ill. App. 3d 788, 791 (1985) (guardian has authority to consent to abortion on behalf of ward); In re Adoption of Savory, 102 Ill. App. 3d 276, 277-78 (1981) (guardian has authority to consent to adoption of adult ward). We find that a guardian\u2019s authority to continue a dissolution proceeding on behalf of a ward is also encompassed within this broad description of a guardian\u2019s powers. The status of a ward\u2019s marriage impacts the ward\u2019s support, care, comfort, and development of self-reliance and independence. These are areas in which a guardian may be empowered to act under subsection (a).\nThe language of a 1997 amendment to section 11a \u2014 17 also indicates that the legislature intended a guardian to have the authority to continue a dissolution proceeding filed by a ward prior to an adjudication of disability. This amendment requires guardians to make decisions on behalf of a ward in accordance with the ward\u2019s previously expressed wishes:\n\u201cDecisions made by a guardian on behalf of a ward shall be made in accordance with the following standards for decision making. Decisions made by a guardian on behalf of a ward may he made by conforming as closely as possible to what the ward, if competent, would have done or intended under the circumstances, taking into account evidence that includes, but is not limited to, the ward\u2019s personal, philosophical, religious and moral beliefs, and ethical values relative to the decision to be made by the guardian. Where possible, the guardian shall determine how the ward would have made a decision based on the ward\u2019s previously expressed preferences, and make decisions in accordance with the preferences of the ward. If the ward\u2019s wishes are unknown and remain unknown after reasonable efforts to discern them, the decision shall be made on the basis of the ward\u2019s best interests as determined by the guardian. In determining the ward\u2019s best interests, the guardian shall weigh the reason for and nature of the proposed action, the benefit or necessity of the action, the possible risks and other consequences of the proposed action, and any available alternatives and their risks, consequences and benefits, and shall take into account any other information, including the views of family and friends, that the guardian believes the ward would have considered if able to act for herself or himself.\u201d (Emphasis added.) 755 ILCS 5/lia \u2014 17(e) (West 1998).\nBy requiring guardians to act in accordance with their wards\u2019 desires in making personal decisions, subsection (e) contemplates that a guardian will have the authority to carry out the ward\u2019s wishes, including those expressed by a ward who filed a petition for dissolution of marriage. Based on the legislative intent contained in section 11a \u2014 17, we find that this statute authorizes a guardian to continue a dissolution of marriage action on behalf of a ward.\nOur interpretation of section 11a \u2014 17 is supported by recent decisions in which Illinois courts have held that guardians must make personal decisions for their wards in accordance with the wards\u2019 wishes. In In re Estate of Greenspan, 137 Ill. 2d 1 (1990), for example, the guardian petitioned the court for permission to withdraw life-sustaining artificial nutrition and hydration being administered to the ward. This court stated that the ward had a right to refuse such life-sustaining medical treatment and that the guardian could exercise this right on the ward\u2019s behalf. Greenspan, 137 Ill. 2d at 16; see also In re Estate of Longeway, 133 Ill. 2d 33, 45-46 (1989). In addition, this court held that the guardian\u2019s exercise of the ward\u2019s right should be governed by the ward\u2019s previously expressed wishes on the subject. The Greenspan court stated that, generally, a guardian is required to act in the ward\u2019s best interests. If, however, there is clear and convincing proof that the ward would have chosen to have life-support withdrawn, the guardian must act in accordance with these wishes, irrespective of the guardian\u2019s own judgment as to the ward\u2019s best interests. Greenspan, 137 Ill. 2d at 17-18. To do otherwise, the Greenspan court explained, would be to elevate \u201cother parties\u2019 assessments of the meaning and value of life \u2014 or, at least, their assessments of what a reasonable individual would choose \u2014 over the affected individual\u2019s own common law right to refuse medical treatment.\u201d Greenspan, 137 Ill. 2d at 18; see also, e.g., In re C.E., 161 Ill. 2d 200 (1994) (a guardian may consent to the administration of psychotropic medication on behalf of a ward if a court finds, after considering the wishes of the recipient, that there is clear and convincing proof that the administration of the medicine outweighs its potential harmful effects); In re Estate of Austwick, 275 Ill. App. 3d 769 (1995) (a guardian may authorize the administration of electroconvulsive therapy to a ward upon a clear and convincing showing that the ward would have wanted this treatment).\nOur decision in Greenspan supports Cronk\u2019s standing to continue Donald\u2019s dissolution action in this case. Like the decision to withdraw life-sustaining nutrition and hydration, a spouse\u2019s decision to terminate a marriage is intensely personal. By filing a petition for dissolution of marriage 14 months prior to his being adjudicated a disabled person, Donald made a clear and convincing showing of his choice to end his marriage. Greenspan requires that, when there is such proof of the ward\u2019s preferences, a guardian must act in accordance with those preferences. To deny Cronk standing to continue Donald\u2019s dissolution action would be to elevate other parties\u2019 assessments as to the value of Donald\u2019s marriage over his own expressed desire to end that marriage. Based on section 11a \u2014 17 and Illinois case law involving the scope of a guardian\u2019s authority, we hold that Cronk has standing to continue Donald\u2019s action to dissolve his marriage.\nWe observe that our holding is consistent with an amendment to section 11a \u2014 17 that became effective while this appeal was pending. After the appellate court issued its opinion in this case, the legislature amended section 11a \u2014 17 to specifically permit a guardian to continue a dissolution of marriage action on behalf of a ward in the circumstances presented here. Section 11a \u2014 17 now provides:\n\u201cIf the ward filed a petition for dissolution of marriage under the Illinois Marriage and Dissolution of Marriage Act before the ward was adjudicated a disabled person under this Article, the guardian of the ward\u2019s person and estate may maintain that action for dissolution of marriage on behalf of the ward.\u201d Pub. Act 91 \u2014 139, eff. January 1, 2000 (amending 755 ILCS 5/1 la \u2014 17 (West 1996)).\nNeither party has argued, however, that this new section should have any application to the facts before us. Accordingly, we do not address whether amended section 11a \u2014 17 would apply to the instant case. See Reed v. Farmers Insurance Group, 188 Ill. 2d 168, 172-73 (1999); Schirmer v. Bear, 174 Ill. 2d 63, 69 n.1 (1996).\nFinally, we emphasize the limited nature of our holding. We decide only that Cronk has standing to continue a dissolution of marriage proceeding filed by Donald. Under section 11a \u2014 17, her actions are still subject to the supervision of the circuit court. See 755 ILCS 5/1 la\u2014 17(a) (West 1996); see also In re Estate of Wellman, 174 Ill. 2d 335, 347 (1996) (\u201cguardian only acts as the hand of the court and is at all times subject to the court\u2019s direction in the manner in which the guardian provides for the care and support of the disabled person\u201d). In addition, we express no opinion as to the merits of Donald\u2019s action for dissolution of marriage. Whether a dissolution should be granted is a matter for the circuit court to determine after appropriate proceedings under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq. (West 1996)).\nCONCLUSION\nFor the foregoing reasons, we hold that a guardian has standing to pursue a dissolution of marriage action on behalf of a ward when the ward has filed the action prior to being adjudicated disabled. Accordingly, we reverse the judgment of the appellate court and remand the cause to the circuit court for further proceedings consistent with this opinion.\nAppellate court judgment reversed;\ncause remanded.", "type": "majority", "author": "JUSTICE McMORROW" }, { "text": "JUSTICE RATHJE,\nspecially concurring:\nI agree with the majority that a plenary guardian of a disabled adult has standing to proceed with a dissolution of marriage action filed by the ward prior to the adjudication of the ward\u2019s disability. I cannot, however, join the majority\u2019s analysis, which is wholly unnecessary and irrelevant.\nThe majority spends 24 paragraphs resolving a simple issue that already has been decided. The molehill beneath the majority\u2019s mountain is section 11a \u2014 17(a\u20145) of the Probate Act of 1975 (Pub. Act 91 \u2014 139, eff. January. 1, 2000 (amending 755 ILCS 5/1 la \u2014 17 (West 1998)), which provides that:\n\u201cIf the ward filed a petition for dissolution of marriage under the Illinois Marriage and Dissolution of Marriage Act before the ward was adjudicated a disabled person under this Article, the guardian of the ward\u2019s person and estate may maintain that action for dissolution of marriage on behalf of the ward.\u201d\nThis amendment was added by the legislature while this appeal was pending. The provision has an effective date of January 1, 2000.\nWhen the legislature changes the law while an appeal is pending, a reviewing court will apply the new law unless to do so would interfere with a vested right. First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 289 (1996); see also Dardeen v. Heartland Manor, Inc., 186 Ill. 2d 291, 295 (1999) (McMorrow, J., writing). Vested rights are interests protected from legislative interference by the due process clause (Ill. Const. 1970, art. I, \u00a7 2). Armstead, 171 Ill. 2d at 289. A right has not vested until it is \u201cso far perfected that it cannot be taken away by legislation,\u201d and so \u201ccomplete and unconditional\u201d that it \u201cmay be equated with a property interest.\u201d Armstead, 171 Ill. 2d at 290-91.\nClearly, no vested right is impaired by application of the amended statute. The legislature merely clarified that the scope of a guardian\u2019s powers includes maintaining dissolution suits that were filed before the ward became disabled. Donald had a valid dissolution action pending against Sharron for over a year before he was adjudicated disabled. The legislation simply allows Donald\u2019s guardian to continue this action. Further, Sharron has not identified any vested right with which application of the new statute would interfere. Although the statute was not yet effective when the parties filed their appellate briefs, Donald noted in his brief that the legislature had proposed amendments to the statute and that applying the new statute would not interfere with a vested right. Sharron could have addressed this argument in her response brief but chose to ignore it. Sharron has not argued that a vested right would be impaired by application of the current law, and I am unable to discern one.\nNor is this the situation presented in In re Marriage of Cohn, 93 Ill. 2d 190 (1982), where the legislature violated separation of powers principles by passing legislation to overrule a decision of a reviewing court. In Cohn, we explained that, although the legislature may change the law as interpreted by the courts prospectively, it cannot retroactively alter a statute in such a way that the statute itself overrules a decision of a reviewing court. In that case, the legislature sought to validate a bifurcated judgment in a divorce case by passing a statute allowing for such judgments. The statute was passed following the appellate court\u2019s decision vacating the judgment and included a provision that said, \u201c \u2018All judgments for dissolution of marriage reserving any such questions entered prior to the effective date of this amendatory Act of 1981 are declared to be valid as of the date of entry.\u2019 \u201d Cohn, 93 Ill. 2d at 201, quoting Ill. Rev. Stat. 1981, ch. 40, par. 401(3). Thus, the legislation itself would have changed the appellate court\u2019s decision. This court held that the legislature \u201cinvaded the province of the judiciary by retroactively overruling a decision of a reviewing court.\u201d Cohn, 93 Ill. 2d at 204.\nHere, by contrast, the legislature did not attempt to change the decision of the appellate court. Although the amendment might have been proposed in response to the appellate court\u2019s decision, the legislature made no attempt to apply the statute to pending cases and gave the statute an effective date of January 1, 2000. In Cohn, we reiterated that the legislature can enact legislation for prospective application in pending cases so long as it does not attempt to tell a court how to apply the new law to the facts of a particular case. Cohn, 93 Ill. 2d at 205-06. What the legislature cannot do is attempt \u201cto attribute to a statute, at the time of the reviewing court\u2019s opinion, a meaning different than that declared in the opinion.\u201d Cohn, 93 Ill. 2d at 206.\nThis case was argued at the September 1999 term of court. If the opinion had been issued before the end of the year, the new statute would not have been applicable. The case was not decided until January 2000, and by that time the new statute was in effect. The legislature did not try to attempt to alter the meaning of the statute at the time the appellate court\u2019s opinion was issued and did not try to dictate to the courts how to apply the new law to pending cases. Accordingly, there is no separation of powers problem in applying the current law.\nThe majority\u2019s only reason for failing to apply the current law is that \u201cNeither party has argued *** that this new section should have any application to the facts before us.\u201d 189 Ill. 2d at 281. I am unaware of any rule which holds that this state\u2019s highest court can apply the controlling law only if the parties cite it in their briefs. There never has been, and hopefully never will be, such a rule.\nIn sum, I concur with the majority\u2019s conclusion that a plenary guardian of a disabled adult has standing to maintain a dissolution action filed by the ward prior to the adjudication of the ward\u2019s disability. I do so not for the reasons stated in the majority opinion, but because a controlling statute specifically answers this question.", "type": "concurrence", "author": "JUSTICE RATHJE," } ], "attorneys": [ "A. Marcy Newman and Susan Lorraine Kennedy, both of Chicago, for appellant.", "Shannon M. Cobe and Phillip J. Mohr, both of Chicago, for appellee." ], "corrections": "", "head_matter": "(No. 86974.\nIn re MARRIAGE OF BURGESS (Donald J. Burgess, Appellant, v. Sharron M. Burgess, Appellee).\nOpinion filed February 17, 2000.\nA. Marcy Newman and Susan Lorraine Kennedy, both of Chicago, for appellant.\nShannon M. Cobe and Phillip J. Mohr, both of Chicago, for appellee." }, "file_name": "0270-01", "first_page_order": 282, "last_page_order": 297 }