{ "id": 1352847, "name": "In re MARRIAGE OF DONALD J. BURGESS, Petitioner-Appellee, and SHARRON M. BURGESS, Respondent-Appellant", "name_abbreviation": "In re Marriage of Burgess", "decision_date": "1998-12-22", "docket_number": "No. 1\u201497\u20144311", "first_page": "807", "last_page": "814", "citations": [ { "type": "official", "cite": "302 Ill. App. 3d 807" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "750 S.W.2d 837", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9991215 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/sw2d/750/0837-01" ] }, { "cite": "279 S.W.2d 71", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1955, "opinion_index": 0 }, { "cite": "198 Tenn. 232", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8529588 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/tenn/198/0232-01" ] }, { "cite": "310 S.C. 336", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 825984 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/sc/310/0336-01" ] }, { "cite": "594 A.2d 307", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 1827685, 898238 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/pa/527/0525-01", "/pa-super/406/0218-01" ] }, { "cite": "406 Pa. Super. 218", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 898238 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/pa-super/406/0218-01" ] }, { "cite": "762 P.2d 1051", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1988, "opinion_index": 0 }, { "cite": "93 Or. App. 463", "category": "reporters:state", "reporter": "Or. App.", "case_ids": [ 4418071 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/or-app/93/0463-01" ] }, { "cite": "513 N.E.2d 1357", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "32 Ohio App. 3d 47", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 6712261 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ohio-app-3d/32/0047-01" ] }, { "cite": "118 N.M. 17", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563453 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/nm/118/0017-01" ] }, { "cite": "755 S.W.2d 5", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 11326988 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/sw2d/755/0005-01" ] }, { "cite": "335 N.W.2d 657", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1983, "opinion_index": 0 }, { "cite": "125 Mich. App. 164", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2226114 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/mich-app/125/0164-01" ] }, { "cite": "37 N.E.2d 260", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1941, "opinion_index": 0 }, { "cite": "310 Mass. 126", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 3839800 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/mass/310/0126-01" ] }, { "cite": "64 P. 103", "category": "reporters:state_regional", "reporter": "P.", "year": 1901, "pin_cites": [ { "parenthetical": "interpreting Hawaii law" } ], "opinion_index": 0 }, { "cite": "132 Cal. 85", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2004852 ], "year": 1901, "pin_cites": [ { "parenthetical": "interpreting Hawaii law" } ], "opinion_index": 0, "case_paths": [ "/cal/132/0085-01" ] }, { "cite": "648 So. 2d 193", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7444590 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/so2d/648/0193-01" ] }, { "cite": "110 Cal. Rptr. 897", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1973, "opinion_index": 0 }, { "cite": "516 P.2d 289", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1973, "opinion_index": 0 }, { "cite": "10 Cal. 3d 476", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2299818 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/cal-3d/10/0476-01" ] }, { "cite": "242 Ala. 141", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 2447008 ], "weight": 2, "year": 1941, "opinion_index": 0, "case_paths": [ "/ala/242/0141-01" ] }, { "cite": "57 So. 2d 505", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 5236569, 5236421 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/ala/257/0141-01", "/ala/257/0140-01" ] }, { "cite": "257 Ala. 140", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 5236421 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/ala/257/0140-01" ] }, { "cite": "165 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483558 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "492" }, { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0482-01" ] }, { "cite": "81 Ill. 2d 105", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5480076 ], "year": 1980, "pin_cites": [ { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0105-01" ] }, { "cite": "139 Ill. App. 3d 763", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3569211 ], "year": 1985, "pin_cites": [ { "page": "778", "parenthetical": "Jiganti, P.J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0763-01" ] }, { "cite": "702 P.2d 465", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "104 Wash. 2d 121", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1201326 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/wash-2d/104/0121-01" ] }, { "cite": "174 Ariz. 436", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1532761 ], "weight": 4, "year": 1993, "opinion_index": 0, "case_paths": [ "/ariz/174/0436-01" ] }, { "cite": "115 Ill. 2d 201", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3180242 ], "weight": 7, "year": 1986, "pin_cites": [ { "page": "207" }, { "page": "205" }, { "page": "206" }, { "page": "206" }, { "page": "208-09", "parenthetical": "Simon, J., dissenting" }, { "page": "206-07" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/115/0201-01" ] }, { "cite": "168 Ill. 339", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3187624 ], "year": 1897, "opinion_index": 1, "case_paths": [ "/ill/168/0339-01" ] }, { "cite": "191 Ill. 280", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3246051 ], "year": 1901, "opinion_index": 1, "case_paths": [ "/ill/191/0280-01" ] }, { "cite": "370 N.E.2d 417", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "428" } ], "opinion_index": 1 }, { "cite": "373 Mass. 728", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 324210 ], "year": 1977, "pin_cites": [ { "page": "746" } ], "opinion_index": 1, "case_paths": [ "/mass/373/0728-01" ] }, { "cite": "702 P.2d 465", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "467" }, { "page": "467" }, { "page": "467" } ], "opinion_index": 1 }, { "cite": "104 Wash. 2d 121", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1201326 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "124" }, { "page": "124" }, { "page": "125" } ], "opinion_index": 1, "case_paths": [ "/wash-2d/104/0121-01" ] }, { "cite": "174 Ariz. 436", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1532761 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "443" }, { "page": "681" }, { "page": "443" }, { "page": "681" } ], "opinion_index": 1, "case_paths": [ "/ariz/174/0436-01" ] }, { "cite": "115 Ill. 2d 201", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3180242 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "208", "parenthetical": "Simon, J., dissenting" }, { "page": "208", "parenthetical": "Simon, J., dissenting" }, { "page": "209", "parenthetical": "Simon, J., dissenting" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/115/0201-01" ] } ], "analysis": { "cardinality": 876, "char_count": 16584, "ocr_confidence": 0.797, "pagerank": { "raw": 6.613054656837636e-08, "percentile": 0.40392412839513037 }, "sha256": "014d662d669a2ab64d408c58af7544a518ce01f180670210809556ac2b1702c7", "simhash": "1:cbedef61c3c49cac", "word_count": 2739 }, "last_updated": "2023-07-14T17:49:29.885307+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF DONALD J. BURGESS, Petitioner-Appellee, and SHARRON M. BURGESS, Respondent-Appellant." ], "opinions": [ { "text": "JUSTICE RAKOWSKI\ndelivered the opinion of the court:\nCan 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? This is the certified question involved in this appeal. Pursuant to In re Marriage of Drews, 115 Ill. 2d 201 (1986), the answer is no and, accordingly, we reverse and remand.\nBACKGROUND\nPetitioner, Donald Burgess, 64, and respondent, Sharron Burgess, 58, were married in 1978. No children were born of the marriage. Donald filed a petition for dissolution in April of 1996, alleging repeated acts of mental cruelty. Sharron answered, denying the allegations. In June of 1997, the probate division of the circuit court entered a finding that Donald was disabled and appointed his sister, Virginia Cronk, as plenary guardian. Sharron then filed a motion to dismiss the dissolution petition, contending that Cronk was without authority to continue with the proceeding. The trial court denied the motion but certified the question. We granted leave to appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), accepting the parties\u2019 certified question.\nANALYSIS\nPreliminarily, under the Illinois Probate Act of 1975, there are two types of guardians: guardians of the person (755 ILCS 5/11a\u201417 (West 1996)) and guardians of the estate (755 ILCS 5/11a\u201418 (West 1996)). A guardian of the person is appointed when a disability, as defined in section 11a \u2014 2, causes an individual to \u201clack[ ] sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person.\u201d 755 ILCS 5/11a\u20142, 11a\u2014 3(a)(1) (West 1996). A guardian of the estate is appointed when, due to a disability as defined in section 11a \u2014 2, the individual \u201cis unable to manage his estate or financial affairs.\u201d 755 ILCS 5/11a\u20142, 11a\u20143(a)(2) (West 1996). Section 11a \u2014 17 sets forth the powers of the guardian of the person and section 11a \u2014 18 sets forth the powers of a guardian of the estate. As previously stated, the instant case involves a plenary guardian, who is a guardian of both the individual\u2019s estate and of the individual\u2019s person.\nIn In re Marriage of Drews, 115 Ill. 2d 201, 207 (1986), our Illinois Supreme Court held that a plenary guardian lacks standing to institute or maintain a dissolution proceeding. When Drews was decided, a majority of states to consider the issue were in accord with this result. The supreme court stated that Illinois had long ago adopted the majority approach and 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. Rejecting the guardian\u2019s argument that section 11a \u2014 18(c) confers standing, the court found that this section relates only to estate matters, not to matters of the person. This section\u2019s authorization of standing does not encompass all legal proceedings, only those that involve financial matters. Drews, 115 Ill. 2d at 206. Section 11a \u2014 17 addresses the guardian\u2019s duties pertaining to personal matters and nothing in that provision \u201cgrants the guardian standing to maintain or defend any legal proceeding.\u201d (Emphasis in original.) Drews, 115 Ill. 2d at 206.\nAs previously noted, when Drews was decided, the majority rule in the country was that a guardian could not institute a dissolution proceeding. Times have changed, however, and a majority of jurisdictions to address the issue (17 of 29) now allow a personal guardian to bring or maintain a dissolution action. We also note from a review of these decisions that sound legal and public policy considerations have been offered in support of this position. See, e.g., Ruvalcaba v. Ruvalcaba, 174 Ariz. 436, 850 P.2d 674 (App. 1993); In re Marriage of Gannon, 104 Wash. 2d 121, 702 P.2d 465 (1985). See also Drews, 115 Ill. 2d at 208-09 (Simon, J., dissenting); In re Marriage of Drews, 139 Ill. App. 3d 763, 778 (1985) (Jiganti, P.J., dissenting).\nHowever, the language of Drews is clear: \u201c[No statutory provision] regulating guardianship for disabled adults *** accord[s] a guardian, limited or plenary, the standing to maintain an action for the dissolution of a ward\u2019s marriage.\u201d Drews, 115 Ill. 2d at 206-07.\nStanding is defined as:\n\u201c \u2018Standing to sue\u2019 means that party has sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. [Citation.] Standing is a concept utilized to determine if a party is sufficiently affected so as to insure that a justiciable controversy is presented to the court; it is the right to take the initial step that frames legal issues for ultimate adjudication by court or jury. [Citation.] ***\nStanding is a requirement that the plaintiffs have been injured or been threatened with injury *** and focuses on the question of whether the litigant is the proper party to fight the lawsuit, not whether the issue itself is justiciable.\u201d Black\u2019s Law Dictionary 1405 (6th ed. 1990).\nThe Drews court articulated an absolute rule based on lack of standing, rooted in the reasoning that a guardian is a creature of statute with only those powers granted to it and, thus, is without standing to do anything beyond its specific grant of authority.\nDonald contends there is a fundamental distinction between institution of an action (as in Drews) and continuation or maintenance of an action (at issue here). Maintain is defined as: \u201c[t]o maintain an action or suit may mean to commence or institute it; the term imports the existence of a cause of action. Maintain, however, is usually applied to actions already brought, but not yet reduced to judgment.\u201d Black\u2019s Law Dictionary 953 (6th ed. 1990). Further, \u201c[t]o \u2018maintain\u2019 an action is to uphold, continue on foot, and keep from collapse a suit already begun, or to prosecute a suit with effect.\u201d Black\u2019s Law Dictionary 953 (6th ed. 1990). Although the statement that a plenary guardian is without standing to maintain an action for dissolution may be dicta, under the facts of Drews, it is nevertheless a clear expression by our supreme court. Moreover, neither section 11a \u2014 17 nor 11a \u2014 18 makes any reference to either instituting or maintaining a dissolution proceeding. Given that the rationale in Drews is that, absent statutory authorization, the guardian cannot act, any argument that a different result should be reached in this case because it involves maintaining an action is without merit.\nDonald additionally points out that Illinois has recently granted additional powers to a personal guardian. In particular, a guardian is now allowed to withdraw medical treatment (see Health Care Surrogate Act (755 ILCS 40/1 et seq.; 5/11a\u201417(d) (West 1996))), a decision Donald argues is much more personal than the decision to seek a divorce. We agree that this argument has appeal from the standpoint of logic. However, we are also quick to note that these additional powers were granted precisely in the manner the Drews court mandated: via statutory authorization. Thus, this appeal to logic would be better served if made to the legislature.\nSince Drews, section 11a \u2014 17 has been amended three times. In 1987, the legislature added the surrogate decision-making powers referred to above. 755 ILCS 5/11a\u201417(d) (West 1996). In 1991, the legislature added powers in connection with the Illinois Power of Attorney Act. 755 ILCS 5/11a\u201417(c) (West 1996). Finally, in 1997, the legislature added a paragraph detailing the standard for decision making a guardian must follow. 755 ILCS 5/11a\u201417(e) (West Supp. 1997). Clearly, the legislature has granted a personal guardian greater authority in certain areas. However, it failed to do so in the area of dissolution actions. The legislature is presumed to know the construction the courts have placed upon a statute. Williams v. Crickman, 81 Ill. 2d 105, 111 (1980). A judicial interpretation of a statute is considered part of the statute until the legislature amends it contrary to that interpretation. Charles v. Seigfried, 165 Ill. 2d 482, 492 (1995). Moreover, when the legislature has acquiesced in the judicial construction over a substantial period of time, as it did here, to depart from that construction would be tantamount to an amendment of the statute itself. Charles, 165 Ill. 2d at 492. This we cannot do. The power to amend is exclusively a legislative function.\nCONCLUSION\nBased on the foregoing, we answer the certified question in the negative and hold that a plenary guardian may not continue a dissolution action originally filed by his or her ward prior to the time the ward was found disabled. Accordingly, we reverse the judgment of the circuit court of Cook County and remand the cause for further proceedings consistent with our opinion.\nReversed and remanded.\nCOUSINS, J., concurs.\nSee Hopson v. Hopson, 257 Ala. 140, 57 So. 2d 505 (1952); Campbell v. Campbell, 242 Ala. 141, 5 So. 2d 401 (1941); Ruvalcaba v. Ruvalcaba, 174 Ariz. 436, 850 P.2d 674 (App. 1993); In re Marriage of Higgason, 10 Cal. 3d 476, 516 P.2d 289, 110 Cal. Rptr. 897 (1973); Northrop v. Northrop, No. CN 94\u20149882 (Del. Fam. Ct. December 30, 1996); Vaughn v. Guardianship of Vaughn, 648 So. 2d 193 (Fla. App. 1994); McGrew v. Mutual Life Insurance Co., 132 Cal. 85, 64 P. 103 (1901) (interpreting Hawaii law); Cohn v. Carlisle, 310 Mass. 126, 37 N.E.2d 260 (1941); Smith v. Smith, 125 Mich. App. 164, 335 N.W.2d 657 (1983); In re Palmer, 755 S.W.2d 5 (Mo. App. 1988); Nelson v. Nelson, 118 N.M. 17, 878 P.2d 335 (App. 1994); Pace v. Pace, 32 Ohio App. 3d 47, 513 N.E.2d 1357 (1986); In re Marriage of Ballard, 93 Or. App. 463, 762 P.2d 1051 (1988); Syno v. Syno, 406 Pa. Super. 218, 594 A.2d 307 (1991); Murray v. Murray, 310 S.C. 336, 426 S.E.2d 781 (1993); Turner v. Bell, 198 Tenn. 232, 279 S.W.2d 71 (1955); Wahlenmaier v. Wahlenmaier, 750 S.W.2d 837 (Tex. Ct. App. 1988); In re Marriage of Gannon, 104 Wash. 2d 121, 702 P.2d 465 (1985).\nOf the 17 jurisdictions that allow institution, four allow such action pursuant to express statute or rule (Florida, Massachusetts, Michigan, and Missouri). Eight appear to allow the action outright (Alabama, Arizona, Hawaii, New Mexico, Oregon, Tennessee, Texas, and Washington); and five require some degree of competency on the part of the ward to express a desire for dissolution (California, Delaware, Ohio, Pennsylvania, and South Carolina).", "type": "majority", "author": "JUSTICE RAKOWSKI" }, { "text": "JUSTICE TULLY,\nspecially concurring:\nI specially concur because while I agree that we are bound by the supreme court\u2019s decision in In re Marriage of Drews, 115 Ill. 2d 201 (1986), I would emphasize the strong legal and public policy reasons for allowing a disabled adult\u2019s plenary guardian to continue a dissolution of marriage action originally filed by the disabled adult.\nI would echo the dissent in Drews, which argued that such guardians should be allowed to initiate, let alone maintain, a dissolution of marriage action on the disabled adult\u2019s behalf. According to that dissent, a marital dissolution action is not too personal to fall within the guardian statute (755 ILCS 5/11a\u20141 et seq. (West 1996)). The purpose of a plenary guardianship is to preserve the disabled adult\u2019s best interests and to protect him or her from \u201cneglect, exploitation, or abuse.\u201d 755 ILCS 5/11a\u20143(b) (West 1996). Not allowing a plenary guardian to maintain a marital dissolution action originally filed by the disabled adult does not serve these goals. \u201cBy allowing guardians to make such decisions regarding dissolution actions, a court preserves \u2018the dignity and worth of such a person [an incompetent] and affords to that person the same panoply of rights and choices it recognizes in competent persons.\u2019 \u201d Drews, 115 Ill. 2d at 208 (Simon, J., dissenting), quoting Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 746, 370 N.E.2d 417, 428 (1977).\nAlso, the Drews dissent questioned the authority upon which the majority relied. \u201cThe two Illinois cases on which the majority relie[d] in holding that a guardian lacks standing to initiate a dissolution action [(Pyott v. Pyott, 191 Ill. 280 (1901); Iago v. Iago, 168 Ill. 339 (1897))] were written during a time when divorces were relatively infrequent and much more difficult to obtain.\u201d Drews, 115 Ill. 2d at 208 (Simon, J., dissenting). The dissent stated that the majority used \u201can overly narrow reading of the [guardian] statute that is neither in the best interest of the ward nor the public.\u201d 115 Ill. 2d at 209 (Simon, J., dissenting).\nIn addition, I agree with the Drews dissent that maintaining a dissolution action is no more personal than making medical decisions. \u201c[I]n these days of termination of life support, tax consequences of virtually all economic decisions, no-fault dissolutions and the other vagaries of a vastly changing society, we think an absolute rule denying authority is not justified nor in the public interest.\u201d In re Marriage of Gannon, 104 Wash. 2d 121, 124, 702 P.2d 465, 467 (1985). As petitioner pointed out in his appellee\u2019s brief, the Probate Act specifically authorizes a guardian to act as a surrogate decision maker under the Health Care Surrogate Act. 755 ILCS 5/11a\u201417(d) (West 1996). The Health Care Surrogate Act allows the surrogate to authorize the withdrawal of medical treatment. 755 ILCS 40/20 (West 1996). Thus, I would find the argument that initiating or maintaining a dissolution action on a ward\u2019s behalf is too personal to fall within the guardian statute to be unpersuasive.\nIt is important to note that of the 29 jurisdictions addressing the issue, 17 allow a guardian to institute a dissolution proceeding on the ward\u2019s behalf, and some of those stipulate that the ward must be able to exercise reasonable judgment as to his or her personal decisions and to unequivocally express a desire for dissolution. Ten of the twenty-nine jurisdictions, including Illinois, do not allow a guardian to institute dissolution proceedings. Most of those jurisdictions have not considered the issue since the 1950\u2019s. Two of the twenty-nine jurisdictions are undecided on the issue. Certainly Drews no longer reflects the majority view.\nMoreover, allowing a guardian to maintain such dissolution actions preserves equity between the disabled adult and the spouse because otherwise, \u201c \u2018the competent party is vested with absolute, final control over the marriage.\u2019 \u201d In re Marriage of Ruvalcaba, 174 Ariz. 436, 443, 850 P.2d 674, 681 (App. 1993), quoting Gannon, 104 Wash. 2d at 124, 702 P.2d at 467. The court in Ruvalcaba was also concerned about \u201cleaving an incompetent spouse captive to the whims of the competent spouse, and the specter of potential for abuse.\u201d Ruvalcaba, 174 Ariz. at 443, 850 P.2d at 681. In Gannon, the court also addressed the question, as in this case, of whether the guardian had standing to seek a marital dissolution on behalf of a legally incompetent spouse. The court set forth an equitable method of resolving the issue:\n\u201cIn cases in which the guardian *** believes a dissolution to be in the best interests of the incompetent ward, such authority must be sought specifically by a special petition for that purpose. The court must then hold a hearing to obtain evidence of what action is in the best interests of the ward. The discretion of the trial court will test these matters, again with great emphasis upon the interests of the ward and the necessities and interests of the competent spouse.\u201d Gannon, 104 Wash. 2d at 125, 702 P.2d at 467.\nFinally, I would emphasize that although we are bound by the decision in Drews, the facts of this case illustrate the need for a change in the law to allow plenary guardians to maintain marital dissolution actions on their wards\u2019 behalf. The record shows that petitioner had expressed his desire for a divorce for approximately 14 months before he became disabled. In addition, there is evidence that, even after being deemed disabled, he retained some mental capacities as well as the ability to live on his own. The result we are required to reach leaves petitioner powerless over his own life.", "type": "concurrence", "author": "JUSTICE TULLY," } ], "attorneys": [ "Shannon M. Cobe and Chicago Volunteer Legal Services, both of Chicago, for appellant.", "A. Marcy Newman and Susan Lorraine Kennedy, both of Chicago, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF DONALD J. BURGESS, Petitioner-Appellee, and SHARRON M. BURGESS, Respondent-Appellant.\nFirst District (2nd Division)\nNo. 1\u201497\u20144311\nOpinion filed December 22, 1998.\nTULLY, J., specially concurring.\nShannon M. Cobe and Chicago Volunteer Legal Services, both of Chicago, for appellant.\nA. Marcy Newman and Susan Lorraine Kennedy, both of Chicago, for appellee." }, "file_name": "0807-01", "first_page_order": 825, "last_page_order": 832 }