{ "id": 3492603, "name": "In re ESTATE OF NELLIE BANIA (Nellie Bania, Cross-Petitioner-Appellant, v. Nannette J. D'Angelo, Petitioner; Chester Pacyna, Cross-Petitioner-Appellee)", "name_abbreviation": "Bania v. D'Angelo", "decision_date": "1984-12-28", "docket_number": "No. 84\u20141499", "first_page": "36", "last_page": "41", "citations": [ { "type": "official", "cite": "130 Ill. App. 3d 36" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "230 N.E.2d 516", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "86 Ill. App. 2d 472", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2550818 ], "pin_cites": [ { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/86/0472-01" ] }, { "cite": "300 N.E.2d 574", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "13 Ill. App. 3d 714", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5347162 ], "year": 1967, "pin_cites": [ { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/0714-01" ] }, { "cite": "398 N.E.2d 420", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. App. 3d 383", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5607057 ], "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/79/0383-01" ] }, { "cite": "129 N.E.2d 751", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "6 Ill. 2d 594", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2708626 ], "pin_cites": [ { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/6/0594-01" ] }, { "cite": "355 N.E.2d 205", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "41 Ill. App. 3d 995", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2491867 ], "year": 1955, "pin_cites": [ { "page": "997" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0995-01" ] }, { "cite": "142 N.E.2d 747", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "13 Ill. App. 2d 491", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5170251 ], "year": 1976, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/13/0491-01" ] } ], "analysis": { "cardinality": 687, "char_count": 12865, "ocr_confidence": 0.751, "pagerank": { "raw": 1.9216136172450922e-07, "percentile": 0.7330618503240922 }, "sha256": "09e81c20cbc2442c822878fb450d33846b9e241406d2026ea070609e2550c04a", "simhash": "1:aaa722a78a184e57", "word_count": 2113 }, "last_updated": "2023-07-14T15:58:49.109718+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ESTATE OF NELLIE BANIA (Nellie Bania, Cross-Petitioner-Appellant, v. Nannette J. D\u2019Angelo, Petitioner; Chester Pacyna, Cross-Petitioner-Appellee)." ], "opinions": [ { "text": "PRESIDING JUSTICE HARTMAN\ndelivered the opinion of the court:\nActing upon a petition and cross-petitions for appointment of guardian for a disabled person, the circuit court found cross-petitioner-appellant Nellie Bania (Nellie) totally without capacity and appointed persons other than those nominated in her cross-petition as guardians of her person and estate. Nellie appeals and raises as issues whether the circuit court erred by: (1) finding her totally without capacity; and (2) appointing guardians without giving due consideration to her nominees.\nOn December 16, 1983, Nannette D\u2019Angelo and Salvadore Mendoza filed a petition in the circuit court asking to have Nellie adjudged a disabled person because of her \u201c[mjental instability due to complications'of age and recent surgery,\u201d and to have themselves appointed co-guardians of her person and estate. The court appointed a guardian ad litem for Nellie on December 21, 1983, who, on January 17, 1984, filed her report, concluding therein that: \u201cNellie Bania is mostly alert. She has some confusion and forgetfulness. I do not believe she is \u2018incompetent,\u2019 but I do believe she needs help in her tending to her basic needs and that she is subject to influence.\u201d\nOn May 10, 1984, Nellie filed a cross-petition to be adjudged disabled and nominated Mary Bania, wife of Nellie\u2019s nephew, as personal guardian and Leona Sonne, a real estate agent, as estate guardian. Another cross-petition was filed on May 17, 1984, by William Pacyna, Nellie\u2019s first cousin, seeking to have Mary Bania named personal guardian and Chester Pacyna named estate guardian.\nAt a hearing on June 7, 1984, petitioner Mendoza testified that: he has known Nellie since 1946; they are \u201cgood friends\u201d; after Nellie\u2019s companion died in 1979, he helped her by taking her shopping, to the doctor, and, when her physical condition worsened, by feeding her; and since her hospitalization in October 1983, he has collected her social security checks and the rent from her building which he then delivered to his attorney. On cross-examination, he initially denied knowing about a quitclaim deed whereby Nellie conveyed to him and herself in joint tenancy a certain apartment building, but then admitted that Nellie told him she had executed the deed. Nellie put the property in his name because he \u201cwould be taking care of her and *** the property.\u201d He never asked her to execute the deed. He is not willing to turn over his interest in the property, but would do so if asked by Nellie.\nPetitioner D\u2019Angelo testified that Nellie is her mother\u2019s mother\u2019s sister, or great aunt. She is unaware of any other relatives in the Chicago area. After Nellie\u2019s discharge from the hospital in October 1983, Mendoza told her that Nellie was living with Mary Bania. She, her daughters and sister are willing to care for Nellie \u201cwhere she chooses to live, either in her house or in mine.\u201d On cross-examination, D\u2019Angelo said that Mendoza\u2019s attorney asked her to be co-guardian \u2022with Mendoza, and she agreed.\nRaymond Bayster, an attorney, testified that he prepared the quitclaim deed, executed on September 21, 1983, at Nellie\u2019s request. He has known Mendoza for 30 years and has done some legal work for him. He was \u201cretained\u201d by D\u2019Angelo after he contacted her and explained Nellie\u2019s need for a guardian. D\u2019Angelo offered to help Nellie, as her mother was living in Florida and was in poor health, and thus was unable to help. He explained that \u201c[t]he word \u2018retain\u2019 is broad,\u201d and considered D\u2019Angelo\u2019s agreement to having her name on the petition as \u201cretaining.\u201d He did not tell D\u2019Angelo that Mendoza, the co-petitioner, had an interest in Nellie\u2019s property. Nellie retained him to prepare three documents before she was hospitalized: the deed; a will; and an instrument giving Mendoza power of attorney.\nNellie testified that she doesn\u2019t need someone to look after her \u201call the time.\u201d She does not object to Mary Bania being named guardian \u201cto take care of\u201d her. Nellie has no trouble collecting rents, and doesn\u2019t need anyone to look after her property, which she can handle by herself. Nellie said she hasn\u2019t seen D\u2019Angelo much, and then said \u201cI don\u2019t know who she is.\u201d She does not want William Pacyna or his son Chester to take care of her things. She did not retain Bayster for any legal work, and didn\u2019t sign a deed or go to his office, although she identified the signature on the deed as her own.\nCross-petitioner Pacyna testified that he is Nellie\u2019s first cousin and lives in Michigan. His son, Chester Pacyna, testified that he owns and manages two apartment buildings. A retired policeman, he would have ample time to attend to Nellie\u2019s financial affairs.\nAll parties stipulated to the report of a medical evaluation of Nellie submitted by Dr. Roman Solecki, which was admitted into evidence as a joint exhibit, noting that Nellie suffers from \u201cSenile Dementias\u2014 uncomplicated *** manifested by severe memory impairment, impaired judgment, also disoriented as to time, partially oriented to place and person.\u201d\nThe circuit court found Nellie to be disabled and appointed Chester Pacyna guardian of Nellie\u2019s estate and D\u2019Angelo guardian of her person. No reasons for this decision were given at the hearing. The order entered on June 11, 1984, found Nellie \u201ctotally without understanding or capacity to make or communicate decisions regarding his/ her person\u201d and \u201ctotally unable to manager [sic] his/her estate or financial affairs.\u201d The court gave as a factual basis for this determination the medical report stipulated to by all parties \u201cand upon a hearing of further testimony.\u201d This appeal followed.\nI\nNellie contends that the circuit court\u2019s finding of total disability and its granting of plenary guardianship are not supported by the record and thereby contravene section 11a\u20143(b) of the Probate Act (Ill. Rev. Stat. 1983, ch. IIOV2, par. 11a\u20143(b)), which provides, in part, that guardianship is to be utilized only as is necessary to promote the well-being of the disabled person, to protect her from neglect, exploitation, or abuse, to encourage development of her maximum self-reliance and independence, and should be ordered only to the extent necessitated by the individual\u2019s actual mental, physical and adaptive limitations.\nAll the parties herein stipulated, however, that Nellie was disabled. The \u201climited capacity\u201d argument being put forth on appeal was never raised in the circuit court. Indeed, the record reflects that the court\u2019s inquiry was limited from the outset to a determination of who should be appointed guardian. At the beginning of the hearing the court asked whether Nellie was \u201cdisabled under the statute,\u201d and, upon being advised by counsel that she was, stated that \u201cthe question is who should be the guardian of her estate and person.\u201d Later the court sustained Nellie\u2019s objection to certain testimony related to her competency and rejected appellees\u2019 argument that this testimony was relevant to the issues before the court, stating:\n\u201cTHE COURT: Before me is a petition as to whether or not Nellie Bania is a disabled person. There is a stipulation by the three of you, by all three counsel that she is disabled as to her person and to her estate and the only issue before me is who is going to be appointed guardian of the estate and of the person.\nMR. KOGUT [Nellie\u2019s attorney]: Exactly.\nTHE COURT: That is the only thing before me.\u201d\nNellie\u2019s subsequent objection to further such testimony was also sustained. Having succeeded in excluding this testimony, counsel for Nellie did not thereafter raise the \u201climited capacity\u201d argument.\nNellie\u2019s closing argument, furthermore, addressed only the question of who should be appointed her guardian. She offered no suggestions for limiting the guardianship order to conform to her degree of disability. Nellie has waived her right to argue the \u201climited capacity\u201d issue or to suggest how tne guardianship order should be restricted. A party cannot complain of such errors which she has committed, invited or induced the court to make. (Meyer v. Polivat (1957), 13 Ill. App. 2d 491, 492, 142 N.E.2d 747; Peters v. Hokin (1976), 41 Ill. App. 3d 995, 997, 355 N.E.2d 205. See also City of Waukegan v. Stanczak (1955), 6 Ill. 2d 594, 608, 129 N.E.2d 751.) We find no basis for overturning the court\u2019s conclusion in this regard.\nII\nNellie next maintains that the circuit court erred by rejecting her choice of guardians, contrary to section 11a\u201412(d) of the Probate Act (Ill. Rev. Stat. 1983, ch. 11OV2, par. 11a\u201412(d)), which provides, in part, that the selection of the guardian is in the discretion of the court, which is to give due consideration to the preference of the disabled person as to a guardian in making its appointment. Nevertheless, the paramount concern in the selection of a guardian is the best interest and well-being of the disabled person, regardless of that person\u2019s choices. See In re Estate of Vicic (1979), 79 Ill. App. 3d 383, 385, 398 N.E.2d 420.\nThe record here supports the court\u2019s rejection of Nellie\u2019s nominee for personal guardian, Mary Bania, and its appointment of Nannette D\u2019Angelo. In her report, the guardian ad litem noted that, after Nellie\u2019s discharge from the hospital, Mary Bania took her to the bank in which Nellie keeps $150,000-$200,000. The guardian ad litem was concerned especially that Nellie did not know why she and Mary went to the bank or what happened there. The guardian ad litem also interviewed Dr. Huq, Nellie\u2019s treating physician. He told her that elderly people who need physical care are insecure, very subject to influence, may be frightened, and when they are being cared for do not want to \u201crock the boat.\u201d Although present at the hearing, Mary Bania did not testify. In view of the doubt cast on Mary Bania\u2019s motives and freedom from self-interest, and her failure to explain the trip to the bank or to testify at all, the court did not err by rejecting her as guardian. Under the former provisions of the Probate Act, the conservator of an incompetent\u2019s estate was required to be free of any interest which might appear to prevent the proper assertion or protection of the incompetent\u2019s rights. In re Estate of Lamont (1973), 13 Ill. App. 3d 714, 716, 300 N.E.2d 574; Proehl v. Leadley (1967), 86 Ill. App. 2d 472, 477, 230 N.E.2d 516.\nThe appointment of D\u2019Angelo as personal guardian was also amply supported by the record. Nellie contends that D\u2019Angelo was solicited by Mendoza\u2019s attorney to join Mendoza on his petition as co-guardian; therefore, since Mendoza\u2019s interest in the guardianship is questionable, his co-nominee should also have been rejected. The court correctly did not appoint Mendoza because of his possible self-interest; however, nothing suggests similar self-serving motives on the part of D\u2019Angelo. She was not told of Mendoza\u2019s interest in Nellie\u2019s property and only wanted to help her great aunt. D\u2019Angelo has known Nellie for 44 years and has visited or phoned her weekly since 1982. She is divorced and the co-owner of a health food store, and her daughters (aged 18 and 21) and sister would help her care for Nellie, whether in Nellie\u2019s home or D\u2019Angelo\u2019s. Through D\u2019Angelo\u2019s testimony, therefore, the court was justified in concluding that she could provide \u201can active and suitable program of guardianship for the disabled,\u201d as required by section 11a\u20145(a) (Ill. Rev. Stat. 1983, ch. 11OV2, par. 11a\u2014 5(a)).\nThe court also did not abuse its discretion by appointing as Nellie\u2019s estate guardian Chester Pacyna, the son of Nellie\u2019s first cousin, instead of Leona Sonne, Nellie\u2019s nominee. Although available, Sonne, a real estate agent unrelated to Nellie, did not testify. The only evidence concerning her was Nellie\u2019s assertion that she was a \u201cvery good woman\u201d who could be trusted to collect her rents. Chester, however, testified that he is a retired policeman who lives in Chicago; has had repeated contact with Nellie over the years; owns and manages two buildings of his own; and would have ample time available to manage Nellie\u2019s estate. We find no abuse of discretion in the selection and appointment by the circuit court of Nellie\u2019s personal and estate guardians.\nFor the foregoing reasons, we affirm the circuit court findings of Nellie\u2019s disability and its appointment of Nellie\u2019s personal and estate guardians.\nAffirmed.\nSTAMOS and PERLIN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE HARTMAN" } ], "attorneys": [ "Joseph, Susman & Myers, of Chicago, and Kogut & Puedo, of Des Plaines (Jack Joseph and Anthony J. Kogut, of counsel), for appellant.", "Kenneth E. Scheiwe, of Chicago, for appellee Nannette J. D\u2019Angelo.", "Harry R. Becker, of Mitchell & Allen, of Chicago, for appellee Chester Pacyna." ], "corrections": "", "head_matter": "In re ESTATE OF NELLIE BANIA (Nellie Bania, Cross-Petitioner-Appellant, v. Nannette J. D\u2019Angelo, Petitioner; Chester Pacyna, Cross-Petitioner-Appellee).\nFirst District (2nd Division)\nNo. 84\u20141499\nOpinion filed December 28, 1984.\nJoseph, Susman & Myers, of Chicago, and Kogut & Puedo, of Des Plaines (Jack Joseph and Anthony J. Kogut, of counsel), for appellant.\nKenneth E. Scheiwe, of Chicago, for appellee Nannette J. D\u2019Angelo.\nHarry R. Becker, of Mitchell & Allen, of Chicago, for appellee Chester Pacyna." }, "file_name": "0036-01", "first_page_order": 58, "last_page_order": 63 }