{ "id": 351081, "name": "In re ESTATE OF ALICE LEE McINERNY, A Disabled Person (Alicia M. Winkelman, Petitioner-Appellant, v. First National Bank of Evergreen Park, Respondent-Appellee)", "name_abbreviation": "Winkelman v. First National Bank", "decision_date": "1997-06-26", "docket_number": "No. 1\u201495\u20141461", "first_page": "589", "last_page": "601", "citations": [ { "type": "official", "cite": "289 Ill. App. 3d 589" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "536 N.E.2d 901", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "181 Ill. App. 3d 97", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498085 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "107" }, { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0097-01" ] }, { "cite": "522 N.E.2d 1368", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "169 Ill. App. 3d 28", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3550282 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0028-01" ] }, { "cite": "478 N.E.2d 1052", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "Phillips I" } ], "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 337", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3528851 ], "year": 1985, "pin_cites": [ { "parenthetical": "Phillips I" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0337-01" ] }, { "cite": "426 N.E.2d 1198", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "85 Ill. 2d 507", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469159 ], "year": 1981, "pin_cites": [ { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0507-01" ] }, { "cite": "500 N.E.2d 29", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "parenthetical": "Phillips II" } ], "opinion_index": 0 }, { "cite": "114 Ill. 2d 85", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542725 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "91", "parenthetical": "Phillips II" }, { "page": "91" }, { "page": "91" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0085-01" ] }, { "cite": "625 N.E.2d 713", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "252 Ill. App. 3d 611", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2967922 ], "year": 1993, "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/252/0611-01" ] }, { "cite": "582 N.E.2d 120", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "145 Ill. 2d 166", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5595759 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "172" }, { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0166-01" ] }, { "cite": "432 N.E.2d 1086", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "parenthetical": "Phillips I" } ], "opinion_index": 0 }, { "cite": "104 Ill. App. 3d 461", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5473767 ], "weight": 4, "year": 1982, "pin_cites": [ { "page": "463" }, { "parenthetical": "Phillips I" }, { "page": "465", "parenthetical": "holding \"that the interests of the beneficiaries in the spendthrift trusts here should be considered as estates within the meaning of that term in section 5 - 105 of the Code [(405 ILCS 5/5-105 (West 1996)" }, { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/104/0461-01" ] }, { "cite": "445 N.E.2d 49", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 1035", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5441162 ], "year": 1983, "pin_cites": [ { "page": "1038-39" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/1035-01" ] }, { "cite": "532 N.E.2d 825", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "125 Ill. 2d 477", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5554839 ], "year": 1988, "pin_cites": [ { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/125/0477-01" ] }, { "cite": "638 N.E.2d 640", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "265 Ill. App. 3d 859", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 872574 ], "year": 1993, "pin_cites": [ { "page": "867" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/265/0859-01" ] }, { "cite": "663 N.E.2d 27", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "278 Ill. App. 3d 503", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156834 ], "year": 1996, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0503-01" ] } ], "analysis": { "cardinality": 1005, "char_count": 26739, "ocr_confidence": 0.765, "pagerank": { "raw": 1.1018197136632343e-07, "percentile": 0.5685443437049805 }, "sha256": "bf5eee910f56e93afb588eeea689f657439f97a5333021a1444212d6425e444a", "simhash": "1:194877c9eb4056b7", "word_count": 4292 }, "last_updated": "2023-07-14T21:29:08.370768+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ESTATE OF ALICE LEE McINERNY, A Disabled Person (Alicia M. Winkelman, Petitioner-Appellant, v. First National Bank of Evergreen Park, Respondent-Appellee)." ], "opinions": [ { "text": "JUSTICE BURKE\ndelivered the opinion of the court:\nPetitioner Alicia Winkelman (Winkelman), guardian of Alice Lee Mclnerny (Alice), the beneficiary of a discretionary supplemental trust with a spendthrift provision, appeals from an order of the circuit court dismissing her petition for fees for herself as guardian and fees for the guardian\u2019s attorney. On appeal, Winkelman contends that the trial court erred in dismissing her petition because \"guardianship fees are statutorily compensable and the nature of the Trust has been deviated.\u201d For the reasons set forth below, we affirm.\nOn August 16, 1993, John F. Mclnerny (John) executed a declaration of trust. The trust named John as trustee during his lifetime and provided that, after his death, trust funds were to be distributed as indicated in the trust instrument. Specifically, the trust provided that, upon John\u2019s death, certain lump-sum payments were to be disbursed to various individuals. The trust also provided for the needs of John\u2019s daughter, Alice Lee Mclnerny, as follows:\n\"1. Commencing with my death and during the life of my daughter, ALICE LEE MC INERNEY [sic], the trustee shall expend such amounts from income and, to the extent necessary, from principal, as the trustee in the trustee\u2019s sole discretion deems desirable for the comfort of ALICE LEE MC INERNEY [sic], taking into consideration other income and cash resources known to the trustee to be available for such purposes, it being my intent that the trust property shall be used to provide ALICE LEE MC INER-NEY [sic] with supplemental care above and beyond the care she was receiving at my death and thereafter becomes eligible to receive by reason of both her disability and her personal lack of assets from any state, federal or private agency that provides services or benefits to disabled persons. Any income not so spent shall be accumulated and from time to time added to principal.\u201d\nThe trust further provided that, at Alice\u2019s death, \"any interest in the fund not effectively disposed of pursuant to the [trust] provisions [should] be distributed\u201d to John\u2019s nephew, Robert Harney, and John\u2019s son, William, in equal portions. The trust also contained the following provision:\n\"The interests of beneficiaries in principal or income shall not be subject to the claims of any creditor, any spouse for alimony or support or other, or to legal process, and may not be voluntarily or involuntarily alienated or encumbered. This provision shall not limit the exercise of any power of appointment.\u201d\nOn December 11, 1993, John died, and respondent First National Bank of Evergreen Park was appointed the successor trustee of the trust (trustee).\nOn March 3, 1994, Winkelman instituted proceedings for her appointment as Alice\u2019s guardian. A report was filed by Dr. Joel Leff which stated that Alice was unable to care for herself because she had \"longstanding psychiatric problems\u201d and \"suffer[ed] from schizo-affective disorder, manic.\u201d The report also stated that Alice had been diagnosed with diabetes mellitus and was unable to follow a diabetic diet. On March 31, the trial court appointed Winkelman as Alice\u2019s guardian.\nOn September 16, 1994, Winkelman filed a motion for withdrawal and substitution of attorney, substituting Deborah Helms as her attorney in place of the bank\u2019s attorney, which the trial court subsequently granted. On the same day, Winkelman also filed a petition to approve her fees as guardian of Alice and fees for the guardian\u2019s attorney.\nIn her petition, Winkelman stated that Alice lived with her in Winkelman\u2019s home and required supervised care at a minimum of 10 hours per day. Alice\u2019s estate was valued at zero, and Alice had no annual income. Since undertaking guardianship services, Winkelman had been reimbursed by the trustee for certain out-of-pocket expenses such as mileage, clothing, shoes, eyeglasses, personal items, meals, and other miscellaneous expenses that were provided by the guardian to Alice. The petition also stated that since her appointment as guardian on March 31, 1994, Winkelman had expended 987.5 hours caring for Alice, which included time expended by Winkelman for grocery shopping, taking Alice to lunch, and taking Alice on vacation. Winkelman requested that she be compensated for this time at a rate of $20 per hour. Winkelman also requested reimbursement for attorney fees incurred by her in the total amount of $3,310 and attorney costs in the amount of $59. Winkelman attached excerpts from the trust instrument, as well as a time and expense log of her activities while caring for Alice beginning on February 23, 1994, and ending on August 3, 1994. Winkelman also attached a detailed report of her attorney\u2019s time and fees for work performed relating to Alice and Winkelman\u2019s guardianship of Alice. The daily entries in Winkel-man\u2019s attorney\u2019s time sheet are dated beginning January 12, 1994, and ending on an unspecified date in 1994 (the last dated entry is September 12, 1994, and one other entry follows with the description \"Court appearance on Petition\u201d).\nOn December 21, 1994, the trustee filed a motion to dismiss Winkelman\u2019s petition. The trustee argued that it had no authority to pay the requested fees and should not be forced to pay them because the trust contained a spendthrift provision that protected the trust from creditors\u2019 claims and that Winkelman, as Alice\u2019s guardian, was a creditor. Winkelman filed a memorandum in opposition to the motion to dismiss, in which she stated that, during John\u2019s final illness, Alice was living with John in squalid conditions; after she discovered this fact, she began to care for Alice, taking her to an eye doctor, administering her diabetes and psychotropic medicines, monitoring her diet, and providing general care; despite her care, Alice continued to behave erratically and required constant attention; subsequent to her appointment as guardian, Alice had undergone surgery for skin cancer; according to Dr. Leif, Alice should be placed in a secure, structured living environment with supervision; and she was preparing to resign her guardianship, and the public guardian of Cook County had agreed to become Alice\u2019s guardian when she resigned. Winkelman further stated that applications in behalf of Alice for social security benefits, \"SSI\u201d benefits, and public aid were pending, social security benefits having initially been denied and subsequently appealed.\nWinkelman\u2019s memorandum further stated that the trustee refused to pay the fees for Alice\u2019s placement in a residential care facility, and until Alice begins receiving government aid, she must remain in Winkelman\u2019s care. Throughout her tenure as Alice\u2019s guardian, the trustee made one payment to Winkelman for her guardianship services and paid a monthly allowance for Alice\u2019s room and board, medical needs, and miscellaneous needs. Winkelman argued that she should be awarded guardian and attorney fees because the trustee intended that Alice be provided necessary support, and the trust was Alice\u2019s only source of income and support until such time as public aid became available. She further argued that the settlor\u2019s intent that Alice\u2019s support be supplemented by the trust could not be fulfilled because Alice was not receiving any primary support. Winkelman contended that the trustee did not have complete discretion in disbursing funds and guardians were statutorily entitled to compensation from the ward\u2019s estate. Winkelman further argued that she was not a common creditor but, rather, was a necessary caregiver entitled to compensation for her services, and because Alice (the ward) had no estate, Winkelman should be compensated from the trust.\nOn February 22, 1995, the trustee filed a memorandum in support of its motion to dismiss Winkelman\u2019s petition for guardian and attorney fees. In its memorandum, the trustee first argued that the trial court lacked jurisdiction and authority to compel payment to Winkelman because there was no estate from which to compensate the guardian as the trust was not a part of Alice\u2019s estate, and the trust instrument did not authorize such a disbursement. The trustee further argued that the trust\u2019s spendthrift provision prevented the trustee from making payments for guardian fees because the guardian was acting as a creditor. Lastly, the trustee argued that it could not pay Winkelman as Alice\u2019s guardian because the trust was a discretionary supplemental needs trust. The trustee contended that, under a supplemental needs trust, a state agency could not seek reimbursement from the trust and, as guardian, Winkelman should not be placed in a better position than a government agency seeking reimbursement for the same services.\nOn April 5, 1995, the trial court held a hearing on Winkelman\u2019s petition for fees and the trustee\u2019s motion to dismiss and made the following finding:\n\"THE COURT: Okay. Thank you folks. I believe the motion to dismiss the petition should be allowed. This would certainly be different if this were inter-vivas trust, funds created from the ward \u2014 those are clearly subject to fees, no question about it. And even though this language were in there at the sole discretion of the trustee those would definitely be allowable. And I presume the trustee wouldn\u2019t have any problem with it, they would be approved. But in this discretionary trust it seems above and beyond. So that is my order.\u201d\nThe trial court then entered an order dismissing Winkelman\u2019s petition with prejudice.\nWinkelman filed a notice of appeal with this court on May 2, 1995. On October 17, 1995, while this appeal was pending, the trial court entered an order authorizing Winkelman to place Alice in Bourbonnais Terrace, a residential care facility.\nWinkelman first argues that, under sections 27 \u2014 1 and 11a \u2014 17 of the Illinois Probate Act of 1975 (Probate Act) (755 ILCS 5/27\u20141, 5/11a\u201417 (West 1992)), guardianship fees are compensable from Alice\u2019s estate and, because Alice does not have an estate, she should be compensated from Alice\u2019s trust fund. Winkelman further argues that although the trust instrument indicates that the trustee retains discretion over disbursements, the trustee does not have complete discretion when disbursing funds for Alice\u2019s support and, therefore, the trial court can compel payment of Winkelman\u2019s guardian fees. Winkelman further argues that her services are compensable because Illinois case law has established that services performed exclusively for the emotional benefit of the disabled adult are compensable from the ward\u2019s estate.\nThe trustee argues that the trial court lacks jurisdiction to compel payment because guardian fees are only compensable from a ward\u2019s estate and the trust is not a part of Alice\u2019s estate. The trustee further argues that the trust is a discretionary supplemental needs trust, not a discretionary primary support trust, and, therefore, the court cannot compel the trustee to pay for services provided to Alice which constitute primary support. The trustee also argues that section 5 \u2014 105 of the Mental Health and Developmental Disabilities Code (405 ILCS 5/5 \u2014 105 (West 1996)) provides that a parent is not required to support an adult disabled child during the parent\u2019s life, and \"the settlor [in this case] was legally entitled to set up the John F. Mclnerny Trust to supplement the care of Alice Lee Mclnerny and owed no legal obligation to design the trust in a manner that would provide for the primary care of the beneficiary.\u201d\nIt is well settled that where no genuine issues of material facts remain in dispute and a trial court has issued rulings of law, a reviewing court must use a de nova standard of review. Jackson v. Moreno, 278 Ill. App. 3d 503, 505, 663 N.E.2d 27 (1996). Further, \"the interpretation of statutory provisions is traditionally a question of law [citation] to which a deferential standard of review is inapplicable.\u201d Mellon Bank, N.A. v. Midwest Bank & Trust Co., 265 Ill. App. 3d 859, 867, 638 N.E.2d 640 (1993). \"A guardian of [a] person has a duty to make necessary provisions for his ward\u2019s 'support, care, comfort, health, education, and maintenance, and such professional services as are appropriate.\u2019 \u201d In re Estate of Burgeson, 125 Ill. 2d 477, 486, 532 N.E.2d 825 (1988), quoting Ill. Rev. Stat. 1987, ch. 1101/2, par. 11a\u201417(a). The Probate Act provides that \"[a] representative [or guardian] is entitled to reasonable compensation for his services.\u201d 755 ILCS 5/27\u20141 (West 1992). The Act also provides that personal guardians may be compensated from the estate of a ward, i.e.:\n\"Duties of personal guardian. *** The guardian shall assist the ward in the development of maximum self-reliance and independence. The guardian of the person may petition the court for an order directing the guardian of the estate to pay an amount periodically for the provision of the services specified by the court order.\u201d 755 ILCS 5/l1a\u201417 (West 1992).\nIn addition, a guardian may be compensated from the estate of the ward for services that \"further the emotional well-being of the ward,\u201d and sections 27 \u2014 1 and 11a \u2014 17 have been interpreted \"to permit the probate court to consider services performed exclusively for the emotional benefit of the disabled adult in setting compensation for the adult\u2019s personal guardians.\u201d In re Estate of Donnelly, 111 Ill. App. 3d 1035, 1038-39, 445 N.E.2d 49 (1983).\nWhile the statutory provisions and case law cited above support Winkelman\u2019s argument that a guardian may be compensated for his or her services from a ward\u2019s estate, in the present case, as both parties agree, the trust is not a part of Alice\u2019s estate. Therefore, under sections 27 \u2014 1 and 11a \u2014 17, Winkelman is not entitled to compensation from the trust\u2019s funds for services she has provided because those funds are not a part of Alice\u2019s estate.\nWinkelman argues, however, that although the trust\u2019s funds are not a part of Alice\u2019s estate, she should be compensated from those funds because while it was John\u2019s intent to create a discretionary supplemental needs trust, in actuality the trust has been functioning as a discretionary primary support trust and should be construed as such. Winkelman argues that because the trustee has been providing payments for Alice\u2019s primary support, and because Alice has not been able to secure any form of public aid, John\u2019s intent that the trust pay supplemental support cannot be fulfilled. Moreover, Winkel-man argues, John intended that the trust should provide for Alice\u2019s comfort, and this requires the trustee to pay for guardian services. Winkelman further argues that, under a discretionary primary support trust, her services constitute primary support and the trustee does not retain the discretion to withhold payment to her under its discretionary power or under the trust\u2019s spendthrift provision because she is not a common creditor. The trustee argues that the trust contains a spendthrift provision, which protects the principal and income from being subject to the claims of any creditor or legal process, and Winkelman\u2019s claims for her guardianship services and guardian attorney fees are those of a creditor. Therefore, the trustee argues, the plain language of the trust prevents the trustee from being subject to Winkelman\u2019s claims.\n\"In general, the rules for construction of written instruments *** apply to the interpretation of trusts \u2014 the question of paramount importance being the settlor\u2019s intention, which if unambiguous is gathered from the whole instrument creating the trust.\u201d Department of Mental Health & Developmental Disabilities v. First National Bank, 104 Ill. App. 3d 461, 463, 432 N.E.2d 1086 (1982). The court will effectuate the terms of the trust if they are not contrary to public policy. Harris Trust & Savings Bank v. Donovan, 145 Ill. 2d 166, 172, 582 N.E.2d 120 (1991). When construing trusts, the court will apply the same rules of construction it applies when it construes wills. Harris Trust, 145 Ill. 2d at 172. \"The settlor\u2019s intent is to be determined solely by reference to the plain language of the trust itself, and extrinsic evidence may be admitted to aid interpretation only if the document is ambiguous and the settlor\u2019s intent cannot be ascertained.\u201d Stein v. Scott, 252 Ill. App. 3d 611, 615, 625 N.E.2d 713 (1993).\nA court will permit the reformation of a trust only in extreme cases, and this power is to be \"exercised with great caution.\u201d Department of Mental Health & Developmental Disabilities v. Phillips, 114 Ill. 2d 85, 91, 500 N.E.2d 29 (1986) (Phillips II). The court may consider \"the surrounding circumstances at the time the instrument was executed, to the extent they may aid in determining the settlor\u2019s intention in using certain language.\u201d First National Bank v. Canton Council of Campfire Girls, Inc., 85 Ill. 2d 507, 514, 426 N.E.2d 1198 (1981). \"[A] court will allow reformation of a trust when an unforeseen exigency arises which may place the cestui que trust in 'pinching want,\u2019 making it necessary for the court to place itself in the position of the settlor and carry out his intention as if he had anticipated the changed circumstances.\u201d Phillips II, 114 Ill. 2d at 91.\nIn the present case, both parties agree that John intended to create a discretionary supplemental support trust with a spendthrift provision. As the trustee states in its brief, case law addressing the issue of whether third parties may obtain reimbursement from a discretionary supplemental support trust with a spendthrift provision is scarce. The cases cited by both Winkelman and the trustee involved the issue of whether state agencies may be reimbursed for services provided to beneficiaries of discretionary trusts with spendthrift provisions and have been affected by a statute enacted by the Illinois legislature in 1991. See First National Bank, 104 Ill. App. 3d 461, 432 N.E.2d 1086; Department of Mental Health & Developmental Disabilities v. Phillips, 133 Ill. App. 3d 337, 478 N.E.2d 1052 (1985) (Phillips I); Phillips II, 114 Ill. 2d 85, 500 N.E.2d 29; Button v. Elmhurst National Bank, 169 Ill. App. 3d 28, 522 N.E.2d 1368 (1988). These cases stand for the proposition that discretionary trust income and principal should be considered as part of the beneficiary\u2019s estate for purposes of reimbursement when a state agency is seeking to be paid for its services provided to the beneficiary even when the trust contains a spendthrift provision. See First National Bank, 104 Ill. App. 3d at 465 (holding \"that the interests of the beneficiaries in the spendthrift trusts here should be considered as estates within the meaning of that term in section 5 \u2014 105 of the Code [(405 ILCS 5/5\u2014105 (West 1996))] and, in this regard, we also view the omission of a specific reference to trustees in that section as not implying a legislative intent to provide free treatment in State facilities for the beneficiaries of spendthrift or other trusts\u201d).\nIn the present case, however, Winkelman is the guardian, not a state agency, seeking reimbursement for services provided to the beneficiary. Thus, the case law cited above does not apply. In addition, even if Winkelman\u2019s services were more similar to those of a state agency than to those of a creditor, she would be precluded from compelling payment from Alice\u2019s trust because, in 1991, the Illinois legislature enacted a statute that protects discretionary trusts created for disabled beneficiaries from claims by state agencies, i.e.:\n\"A discretionary trust for the benefit of an individual who has a disability that substantially impairs the individual\u2019s ability to provide for his or her own care or custody and constitutes a substantial handicap shall not be liable to pay or reimburse the State or any public agency for financial aid or services to the individual except to the extent the trust was created by the individual or trust property has been distributed directly to or is otherwise under the control of the individual ***. *** A discretionary trust is one in which the trustee has discretionary power to determine distributions to be made under the trust.\u201d (Emphasis added.) 760 ILCS 5/15.1 (West 1996).\nBased on the facts of the present case, the exception in this statute does not apply and, therefore, Winkelman may not recover fees under the statute.\nWinkelman further argues, however, that if her services are not similar to those of a state agency but, rather, to those of a creditor, she is providing primary support for Alice and, under section 157(b) of the Restatement of Trusts, she should be allowed to assert a claim against the trust even though the trust contains a spendthrift provision protecting it from creditors\u2019 claims.\nSection 157 of the Restatement of Trusts specifies claims that may be enforceable against a spendthrift trust and trusts for support, as follows:\n\"Although a trust is a spendthrift trust or a trust for support, the interest of the beneficiary can be reached in satisfaction of an enforceable claim against the beneficiary,\n(a) by the wife or child of the beneficiary for support, or by the wife for alimony;\n(b) for necessary services rendered to the beneficiary or necessary supplies furnished to him;\n(c) for services rendered and materials furnished which preserve or benefit the interest of the beneficiary;\n(d) by the United States or a State to satisfy a claim against the beneficiary.\u201d (Emphasis added.) Restatement of Trusts \u00a7 157 (1959).\nHere, we conclude that Winkelman, if acting as a creditor, is not supplying necessary services to Alice. The trustee has distributed funds from the trust for food, clothing, shelter and other miscellaneous items (primary support) at Winkelman\u2019s request for Alice\u2019s necessities. Winkelman, as Alice\u2019s guardian, is only required to represent Alice\u2019s interests; Winkelman is not required to provide the services she is now seeking to have the trust reimburse, such as grocery shopping, taking Alice to lunch, or taking Alice on vacation. Thus, Winkelman is not entitled to circumvent the trust\u2019s spendthrift provision by way of the exceptions enumerated in section 157(b) of the Restatement of Trusts.\nWe also briefly note that it is irrelevant whether the trustee has disbursed funds for Alice\u2019s primary support \"in violation\u201d of the settlor\u2019s intent, as Winkelman argues, because under either a discretionary supplemental support trust with a spendthrift provision or a discretionary primary support trust with a spendthrift provision, Winkelman is not entitled to compensation because her services clearly do not constitute primary support. Therefore, this court does not have to determine whether it must reform the trust, a power which is to be exercised \"with great caution.\u201d Phillips II, 114 Ill. 2d at 91.\nWinkelman also contends that the trustee abused its discretion in refusing to pay for her guardianship services because they are necessary for Alice\u2019s basic support. Winkelman further argues that because the trustee has withdrawn monies from the trust for trust administration fees, it has breached its fiduciary duty.\n\"Absent proof of fraud, abuse of discretion or bad faith, a trustee\u2019s exercise of discretion is not subject to interference by the court.\u201d Taxy v. Worden, 181 Ill. App. 3d 97, 107, 536 N.E.2d 901 (1989). A court cannot substitute its judgment for that of the trustee absent actions by the trustee that are outside the bounds of reasonable judgment. Taxy, 181 Ill. App. 3d at 107. However, \"such discretion is not an arbitrary one and one which would permit the trustee to provide no support whatever for [the beneficiary].\u201d First National Bank, 104 Ill. App. 3d at 465.\nHere, we hold that the trustee has not abused its discretion in performance of its duties enumerated under the trust instrument in refusing to pay Winkelman guardian and attorney fees. The trust specifies that the trustee shall disburse funds at its discretion for the comfort and support of Alice, supplemental to what Alice is entitled to receive from government aid. The trustee has made disbursements for Alice\u2019s room and board, clothing, medical needs and other miscellaneous needs because Alice has been unable to secure any other form of income. Simply because the trustee did not authorize a disbursement for Winkelman\u2019s guardian and attorney fees does not mean that the trustee has abused its discretion. If the trustee had not paid for food when Alice was in desperate need for food, for example, the trustee could be considered to have abused its discretion. This is not the case, however. In any event, based on our determination that Winkelman\u2019s claims for guardian and attorney fees were unenforceable against the trust, there could be no abuse of discretion in the trustee\u2019s refusal to pay them.\nWe also reject Winkelman\u2019s argument that the trustee has abused its fiduciary duty by charging the trust for trust administration fees. Winkelman failed to produce evidence in the trial court of the trustee\u2019s fees and, therefore, no record exists of what, if any, charges the trustee has made to the trust res. Moreover, assuming arguendo that the trustee breached its fiduciary duty to the beneficiary by charging excessive fees to the trust res, Winkelman\u2019s remedy would be an action against the trust in behalf of Alice, rather than in her own behalf for payment of guardian and attorney fees.\nLastly, it should be noted that Winkelman is requesting fees for her services beginning on February 23, 1994, over one month before she was appointed Alice\u2019s guardian on March 31, 1994. Additionally, Winkelman states in her opening and reply briefs that family members and the trustee \"prevailed\u201d upon her to become guardian and, therefore, equity and public policy dictate that she be compensated for her services. There is no indication in the record, however, that Winkelman\u2019s assumption of guardianship duties was anything other than voluntary. Moreover, any implication in Winkelman\u2019s brief that the trustee misled her regarding compensation for her guardianship services is also unsupported by the record.\nFor the reasons stated, we affirm the order of the circuit court dismissing Winkelman\u2019s petition for fees.\nAffirmed.\nMcNAMARA and CERDA, JJ., concur.\nIn the trial court and again on appeal, Winkelman simultaneously argues for guardian fees and attorney fees.", "type": "majority", "author": "JUSTICE BURKE" } ], "attorneys": [ "Deborah L. Helms, of Willowbrook, for appellant.", "Buikema, Hiskes, Dillner, O\u2019Donnell & Marovich, Ltd., of Orland Park (John C. Voorn, of counsel), for appellee." ], "corrections": "", "head_matter": "In re ESTATE OF ALICE LEE McINERNY, A Disabled Person (Alicia M. Winkelman, Petitioner-Appellant, v. First National Bank of Evergreen Park, Respondent-Appellee).\nFirst District (4th Division)\nNo. 1\u201495\u20141461\nOpinion filed June 26, 1997,\nnunc pro tunc March 27, 1997.\nDeborah L. Helms, of Willowbrook, for appellant.\nBuikema, Hiskes, Dillner, O\u2019Donnell & Marovich, Ltd., of Orland Park (John C. Voorn, of counsel), for appellee." }, "file_name": "0589-01", "first_page_order": 607, "last_page_order": 619 }