Estate of Howell v. Howell

2015 IL App (1st) 133247, 36 N.E.3d 293

• Court: Appellate Court of Illinois
• Decided: June 19, 2015
• Docket: 1-13-3247, 1-14-0180 cons.
• Status: Unpublished

Opinion

2015 IL App (1st) 133247

FIFTH DIVISION June 19, 2015

Nos. 1-13-3247 and 1-14-0180 (Cons.)

ESTATE OF DONALD HOWELL, a Disabled Person, by ) LaTanya Turks and The Northern Trust Company, as Coguardians ) Appeal from of the Estate, ) the Circuit Court ) of Cook County Petitioners-Appellants, ) ) 09-P-04974 v. ) ) Honorable DONALD BRENARD HOWELL, ) Daniel B. Malone, ) Judge Presiding Respondent-Appellee. )

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.

OPINION

¶1 Two appeals have been consolidated. In the first one, No. 1-13-3247, the Northern Trust

Company and LaTanya Turks, as coguardians of the estate of Turks' adult son, Donald Howell,

appeal from an order granting their petition to engage in estate planning but rejecting a proposed

plan that would benefit his mother without distributing funds to his father and 10 half siblings

who were born to other mothers. We are respectfully referring to Donald by his first name to

avoid confusing it with his father's similar name. The statute that authorizes estate planning for

an adult disabled ward of the court mandates that the estate guardians' actions shall be "in

keeping with the ward's wishes so far as they can be ascertained" and that the "ward's wishes as

best they can be ascertained shall be carried out." 755 ILCS 5/11a-18 (West 2000). Turks, who

has been her son's fulltime caregiver since he was born with severe cognitive deficits in 1991,

contends her son's father and the father's 10 other children with other mothers have taken little to 1-13-3247 and 1-14-0180 (cons.)

no interest in her son and have not been a part of his life. The trial court ruled–as a matter of

law–that because Donald was born with profound cognitive deficits and has never expressed

testamentary capacity, his wishes could not be ascertained and any estate plan must follow the

rules of intestacy. On appeal, the coguardians contend it was error to decide the issue as a matter

of law and to refuse to conduct an evidentiary hearing to determine whether it was in Donald's

best interests to name his mother as the sole beneficiary. The second appeal, No. 1-14-0180,

concerns attorney fees and asks us to determine whether the estate should compensate the

coguardians' attorneys for pursuing this appeal.

¶2 Donald's profound cognitive impairment dates to his birth on November 15, 1991, with

microcephaly, because his mother was exposed to lead during her pregnancy. Turks did not

suffer any apparent health effects herself, but on Donald's behalf, she sued her Chicago landlord.

A jury awarded Donald $16.5 million. His estate currently exceeds $11 million.

¶3 According to a report prepared by a guardian ad litem (hereinafter GAL) when Donald

was 17 years old in 2009, Donald required constant supervision and was in need of full

guardianship rather than a less restrictive form of guardianship. When the GAL interviewed

Donald and posed questions about his care, Donald ignored him and continued to watch

television, but when asked about his favorite foods, Donald walked to the refrigerator and

returned with three items. Also, Donald "constantly repeat[ed] nonsensical words" during the

GAL's visit to the home. Turks said that her teenage son was functioning like a young child in

that he would try to dress himself, but usually put his clothes on the wrong way, instead of

brushing his teeth he would play with the toothbrush, and because he did not recognize dangers,

their entire apartment had to be "child proof." Donald took prescription medications daily for

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various conditions. He was attending special classes at a public school and he did homework in

the afternoons before getting play time.

¶4 Based in part on the GAL's recommendation, in February 2010, the trial court adjudicated

Donald to be a disabled person. The court noted in its written order that although "acceptable

notice was transmitted" to Donald's father, he did not respond. The court appointed Turks as the

guardian of her son's person and appointed Turks and The Northern Trust Company as the

coguardians of his estate.

¶5 The record also indicates that in 2011, Donald was having difficulty with verbal

communication and needed assistance with daily activities including grooming, dressing, eating,

and taking medication. Donald attended high school part time where he received physical,

occupational and speech therapies and he enjoyed activities at his church, watching sports on

television, listening to music, dancing, and arts and crafts.

¶6 Turks has been a fulltime caregiver for her only child and is not employed elsewhere. For

the past 12 years, an additional caregiver, Tyheshia Wilkins, has resided with Donald and his

mother. There are conflicting statements in the record as to whether Wilkins is related to the

family. Turks' describes her son's father, Donald Brenard Howell, as follows. Howell has never

lived with Turks or Donald. Howell has multiple criminal convictions and was first incarcerated

in 1989. For the first 6 ½ years of Donald's life, Howell was in a federal penitentiary. After being

released, Howell visited Donald twice in about 18 months, with each visit lasting approximately

15 minutes. He was then reincarcerated and spent 6 ½ years in prison. Since his release over six

years ago from the second incarceration, Howell has visited Donald at most six times, Howell

has never assisted with Donald's daily care, Howell has never "involved himself in any

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significant respects in Donald's life," and Howell has contributed only $400 to Donald's support

and comfort.

¶7 In late 2012, Turks and The Northern Trust Company petitioned the court for direction

and authority to proceed with estate planning. Donald's primary care physician gave his opinion

that Donald lacked sufficient capacity to transact ordinary business and lacked testamentary

capacity. Donald's GAL reported that Donald was not capable of directing the preparation of his

estate planning documents and it was the GAL's recommendation that the coguardians prepare

and present a revocable trust and pour over will for court approval.

¶8 In late 2012, the coguardians petitioned the court to execute the estate planning

documents currently at issue. The plan includes the creation of a revocable trust so as to avoid

probate proceedings and reduce attorney fees incurred after Donald's death. Under the proposed

trust, Donald would be the sole beneficiary during his lifetime with all disbursements subject to

court approval. Thus, the procedures currently in place would continue during Donald's lifetime.

After his death, his mother would become the beneficiary of the trust corpus. If she did not

survive Donald, the alternate beneficiaries would be Wilkins, and then his aunt Laurie, who is

Turks' younger sister. Although Donald did not own any property at the time and it is unlikely

that any assets will be titled in his name, the proposed plan included a pour over will distributing

all assets to the revocable trust.

¶9 Turks specified in the petition that she believed Donald's father had several other

biological children whom Donald had met "on a few occasions," but that none of these half

siblings maintained a relationship with Donald. Turks contended that because Howell and his

other children were not involved in Donald's life, the distributive portions of the proposed estate

plan were "consistent with Donald's wishes so far as they can be ascertained." Under the rules of

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intestacy in Illinois, if Donald were to die survived by his parents and half siblings, the parents

and siblings would inherit Donald's intestate property in equal shares, except that if only one

parent was living, that parent would get a double share. 755 ILCS 5/2-1(d) (West 2000). The

court ordered Donald's father to compile the names of all his children and their mothers and the

contact details for the children. The list Howell submitted indicates that he has had 11 children

with 11 different woman, that all but 1 of the children were born between 1985 and 1991, that

Donald is his tenth child, and that the last child was born in 2013 (during these proceedings). In

January 2013, the coguardians used the compiled list to notify Howell and Donald's 10 half

siblings of the pending petition. Howell is the only individual who responded.

¶ 10 Response briefs followed. In his response, the GAL proposed that because it was

impossible to determine Donald's wishes, any distributive portion of the estate should follow the

intestacy statute.

¶ 11 In September 2013, the trial court ordered the coguardians, over their objection, to

prepare an estate plan in which the distribution of assets after Donald's death would be consistent

with the laws of intestacy. Therefore, if Donald were to pass away today, under the estate plan

ordered by the trial court, Donald's assets would be split into 12 shares so that Turks, Howell,

and Howell's 10 other children with different mothers would all receive equal shares. 755 ILCS

5/2-1(d) (West 2000). The court allowed the coguardians to specify in the trust, pour over will,

and assignment that were created that the court had preserved Turks' rights under section 2-2 of

the Probate Act of 1975 (755 ILCS 5/2-2 (West 2000)), which provides for the probate court to

reduce or eliminate distribution to a parent who has willfully neglected, deserted, or failed to

provide support to a child. The court's order indicates its final determination was appealable

within the meaning of Supreme Court Rule 304(a) (Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)) and

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the coguardians have timely appealed from that order. The trial court next considered a fee

petition filed by counsel for coguardian The Northern Trust Company. The court awarded fees

from the estate for the legal work leading up to the court's ruling in September 2013, but rejected

fees related to the appeal of that order. The coguardians filed a separate appeal regarding the fee

petition and that appeal was assigned number1-14-0180 and then consolidated with the first

appeal. Howell and the GAL oppose the appeals.

¶ 12 The coguardians argue that specific sections of the Probate Act allow an estate guardian

to request court authority to create trusts with dispositive provisions deviating from the rules of

intestacy. 755 ILCS 5/11a-18 (West 2000). The coguardians cite section 11a-18(a) of the Probate

Act, titled "Duties of the Estate Guardian," which sets the ward's "best interests" as the

touchstone for all actions taken by an estate guardian. 755 ILCS 11a-18(a) (West 2000). They

also base their appeal on section 11a-18(a-5) of the Probate Act, which they contend expressly

allows an estate plan that departs from intestacy, because the statute states that a guardian's

actions may include "creating for the benefit of the ward or others, revocable or irrevocable

trusts of his or her property that may extend beyond his or her disability or life" and also states

"the guardian shall not, however, be required to include as a beneficiary or fiduciary any person

who he has reason to believe would be excluded by the ward." (Emphases added.) 755 ILCS

11a-18(a-5) (West 2000). The coguardians contend that determining what is in Donald's best

interests is not something that could have been decided as a matter of law and that the trial court

should have granted an evidentiary hearing

¶ 13 The GAL also relies on section 11a-18(a-5) of the Probate Act, but contends that statute

dictates the consideration of only three factors when executing an estate plan for Donald. The

court may authorize the guardian to act (1) "in keeping with the ward's wishes as far as they can

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be ascertained" and (2 and 3) "must consider the permanence of the ward's disabling condition

and the natural objects of the ward's bounty." 755 ILCS 5/11-a-18(a-5) (West 2000). Applying

these factors, the GAL emphasizes that Donald has never had testamentary capacity, cannot

currently express his wishes about an estate plan, and that his disability is permanent and will

always prevent him from expressing his wishes for the estate. The GAL contends that a best

interests hearing is unnecessary because it would consist of the coguardians simply guessing at

how Donald would wish to dispose of his estate. The GAL reasons that because the court "must

consider *** the natural object's of the ward's bounty," then any estate plan for Donald must

provide for not only his mother, but also his father and the 10 half siblings. The GAL concludes

that the estate documents that were executed over the objection of the coguardians are consistent

with the Probate Act and should be affirmed.

¶ 14 Donald's father also opposes the appeal, but presents a different line of reasoning in

support of the trial court's ruling. We will set out and address that argument further below.

¶ 15 Statutory construction is a question of law, and a reviewing court interprets a statute

pursuant to its own judgment, independent of, and not deferential to, that of the trial court.

Advincula v. United Blood Services, 176 Ill. 2d 1, 12, 678 N.E.2d 1009, 1015 (1996). The goal of

statutory construction is to ascertain and give effect to the intent of the legislature. County of

Du Page v. Illinois Labor Relations Board, 231 Ill. 2d 593, 603-04, 900 N.E.2d 1095, 1101

(2008). Statutes should be interpreted as a whole, meaning different sections of the same statute

should be considered in reference to one another so that they are given harmonious effect.

County of Du Page, 231 Ill. 2d at 604, 900 N.E.2d at 1101. In fact, viewing all provisions of an

enactment as a whole is one of the fundamental principles of statutory construction. Michigan

Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504, 732 N.E.2d 528, 535 (2000). If

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the language of the statute is plain, clear and unambiguous, it is our sole basis for discerning the

intent of the legislature and we do not need to resort to other principles of statutory construction.

Gem Electronics of Monmouth, Inc. v. Department of Revenue, 183 Ill.2d 470, 475, 702 N.E.2d

529, 532 (1998); County of Knox ex rel. Masterson v. Highlands, LLC, 188 Ill. 2d 546, 556, 723

N.E.2d 256, 263 (2013). We are never at liberty to depart from the plain language and meaning

of a statute by reading into the language unstated exceptions, limitations, or conditions. Gem

Electronics, 183 Ill. 2d at 475, 702 N.E.2d at 532; County of Knox, 188 Ill. 2d at 556, 723 N.E.2d

at 263.

¶ 16 Applying these principles to the statutes at hand, we find that that the coguardians have

applied the language as it was written by the legislature and that the trial court's order to the

contrary must be reversed.

¶ 17 Section 11a-18(a-5) of the Probate Act provides:

"The probate court, upon petition of a guardian, other than the guardian of a minor,

and after notice to all other persons interested as the court directs, may authorize the

guardian to exercise any or all powers over the estate and business affairs of the ward that

the ward could exercise if present and not under disability. The court may authorize the

taking of an action or the application of funds not required for the ward's current and

future maintenance and support in any manner approved by the court as being in keeping

with the ward's wishes so far as they can be ascertained. The court must consider the

permanence of the ward's disabling condition and the natural objects of the ward's

bounty. In ascertaining and carrying out the ward's wishes the court may consider, but

shall not be limited to, minimization of State or federal income, estate, or inheritance

taxes; and providing gifts to charities, relatives, and friends that would be likely

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recipients of donations from the ward. The ward's wishes as best they can be ascertained

shall be carried out, whether or not tax savings are involved." 755 ILCS 11a-18(a-5)

(West 2000).

Continuing, section 11-a-18(a-5) sets out a nonexhaustive list of possible "[a]ctions or

applications of funds" that may be taken, including "(6) creating for the benefit of the ward or

others, revocable or irrevocable trusts of his or her property that may extend beyond his or her

disability or life." 755 ILCS 5/11a-18(6) (West 2002).

¶ 18 In addition, the best interests standard governs a guardian's actions with regard to the

estate of a disabled adult ward of the court. Section 11a-18(a), quoted in part above, is entitled

"Duties of the estate guardian" (as distinguished from the personal guardian) and states the

following:

"(a) To the extent specified in the order establishing the guardianship, the guardian of

the estate shall have the care, management and investment of the estate, shall manage the

estate frugally and shall apply the income and principal of the estate so far as necessary

for the comfort and suitable support and education of the ward, his minor and adult

dependent children, and persons related by blood or marriage who are dependent upon or

entitled to support from him, or for any other purpose which the court deems to be for the

best interests of the ward, and the court may approve the making on behalf of the ward of

such agreements as the court determines to be for the ward's best interests." (Emphases

added.) 755 ILCS 11a-18(a) (West 2000).

¶ 19 Applying the language of section 11a-18(a-5), the initial question is whether executing

the proposed estate plan is something that Donald would do if he were "not under disability."

755 ILCS 11a-18(a-5) (West 2000). It is undisputed that if Donald was not disabled today, he

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would be able to execute an estate plan that deviates from intestacy. In fact, the trial court

determined that preparing a trust and pour over will is something that Donald would do if he was

not disabled today and the trial court ordered the preparation of the necessary documents.

¶ 20 The next sentence in the paragraph "authorize[s] the taking of an action or the application

of funds *** in keeping with the ward's wishes so far as they can be ascertained." 755 ILCS 11a-

18(a-5) (West 2000). We read this sentence along with section 11a-18(a-5)(6), which authorizes

specific types of "[a]ctions or applications of funds," including the creation of a trust for the

benefit of the ward or others which extends beyond the ward's lifetime. Together, this statutory

language authorizes the execution of an estate plan for Donald which benefits Donald or others

beyond his lifetime.

¶ 21 The concluding phrase in that sentence, which indicates that the action is to be "in

keeping with the ward's wishes so far as they can be ascertained" and the next three sentences set

out the scope of the guardian's consideration, the court's consideration, and the content of the

estate planning documents. As suggested by the parties' arguments, the statute twice mandates

that the ward's wishes are an essential consideration of the guardian and the court. The guardians'

actions shall be "in keeping with the ward's wishes so far as they can be ascertained" and the

"ward's wishes as best they can be ascertained shall be carried out." 755 ILCS 5/11a-18 (West

2000). The GAL reads "so far as they can be ascertained" and "as best they can be ascertained,"

to equate with "only if they can be ascertained," but the statute does not suggest that the ward's

wishes and only the ward's wishes may be carried out. The General Assembly did not indicate

that when a ward is incapable of forming and communicating specific wishes, that a guardian's

efforts to act on the ward's behalf are stymied. Moreover, there are likely instances when a

ward's wishes are not sufficiently comprehensive or in their best interests. The statute's wording

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indicates that the General Assembly anticipated that it will not always be possible to clearly

ascertain and act on the ward's specific wishes. In such cases, the guardian will have to consider

the specific statutory language which authorizes estate planning in the context of the other

sections of the Probate Act that generally govern a guardian's actions. Section 11a-18 in

particular indicates that the estate guardian may act "for any other purpose which the court

deems to be for the best interests of the ward." 755 ILCS 5/11a-18 (West 2000).

¶ 22 Thus, reading the relevant sections of the Probate Act together, the preferred approach to

estate planning is to follow the ward's subjective wishes, to the extent those wishes can be

ascertained, but the overriding principal is to act in the ward's objective "best interests." This two

step approach to a disabled ward's care is well established. Under what is known as "substituted

judgment," a surrogate decision maker will attempt to determine and show the court, with as

much accuracy as possible, what decision the ward would make if he were competent to do so.

See In re Estate of Longeway, 133 Ill.2d 33, 49, 139 549 N.E.2d 292, 299 (1989); Elizabeth G.

Clark, Substituted Judgment: Medical and Financial Decisions by Guardians, 24 Est. Plan. 66

(Feb. 1997). If the ward's competent wishes cannot be clearly proven, then the court will be

guided by the more objective "best interests" standard. In re C.E., 161 Ill.2d 200, 221, 641

N.E.2d 345, 355 (1994).

¶ 23 This dual standard appears not only in the portion of the Probate Act at issue here

regarding a disabled adult's estate but also in the section of the Probate Act concerning the

disabled adult's person. Even the GAL cites a case regarding the dual standard, In re Estate of

K.E.J., which states:

"[T]he law sets up a dual standard to be applied in situations where [personal] guardians

of disabled adults must make decisions for their wards, such as the decision currently

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before us [regarding the proposed involuntary sterilization of a mentally disabled

woman]. First, guardians are to apply a substituted judgment standard, where they

attempt to discern what the ward would have wished if she were competent, and then

substitute that judgment for their own. See, e.g., In re Estate of Greenspan, 137 Ill.2d 1,

558 N.E.2d 1194 (1990) (guardian had standing to seek removal of artificial life support

for ward in a permanent vegetative state, when testimony established that the ward would

likely have refused such treatment if competent). If there is clear and convincing

evidence to demonstrate the course of action that the ward would have taken if

competent, then those wishes take precedence over any best interests analysis.

Greenspan, 137 Ill.2d at 18, 558 N.E.2d at 1202. However, if the guardian is unable to

determine such wishes 'after reasonable efforts to discern them,' then the guardian should

instead act to further the ward's best interests. 755 ILCS 5/11a–17(e) (West 2006)." In re

Estate of K.E.J., 382 Ill. App. 3d 401, 418, 887 N.E.2d 704, 720 (2008).

¶ 24 We do not consider Estate of K.E.J. to be directly on point because the opinion concerns

the authority of a personal guardian. Nonetheless, its discussion of the dual standard is helpful.

The GAL, however, misconstrues the discussion to mean that if the guardian is unable to

determine the ward's wishes, then the guardian would be reduced to guessing at the ward's

wishes, and must, therefore, fall back to the rules of intestacy.

¶ 25 It has also been said:

"Unless an agent is permitted to exercise some kind of independent decisionmaking,

an incapacitated person may effectively be prevented from taking certain actions–

especially with regard to health care decisionmaking and financial or estate planning–that

a nonincapacitated person is able to take. For instance, the incapacitated individual might

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be unable to make gifts to take advantage of the gift tax annual exclusion. Or, medical

treatment might be administered that may be inappropriate or undesired. In these

circumstances, it arguably can be said that an individual's incapacity should not put him

or her in a different position from those who still have the capacity to make their own

decisions.

To remedy this situation, the legal principle known as the doctrine of substituted

judgment has been incorporated into judicial decisionmaking and, in some jurisdictions,

statutory law. The doctrine first appeared in English cases addressing the ability of the

court to authorize the distribution of a portion of the incapacitated person's income or

assets to others, usually family members. Although the term 'substituted judgment' was

not used, the action was justified on the ground that the court would not “refuse to do, for

the benefit of the [incapacitated person], that which it is probable the [incapacitated

person] would have done." Elizabeth G. Clark, Substituted Judgment: Medical and

Financial Decisions by Guardians, 24 Est. Plan. 66, 68 (Feb. 1997).

¶ 26 Turning back to our analysis of the wording of section 11a-18 of the Probate Act, we

consider the sentence indicating "[t]court must consider the permanence of the ward's disabling

condition." The GAL argues this means that when a disabling condition is permanent, the hands

of the estate guardian are tied. Accordingly to the GAL, this means that when a ward has been

cognitively impaired since birth and there is no evidence that it is a temporary impairment which

will abate, then there is no section of the Probate Act that authorizes the trial court to approve

execution of an estate plan with distributive language that deviates from intestacy. This

conclusion is unreasonable. Although Donald's cognitive deficits have thus far prevented him

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from expressing his wishes for his estate, the estate guardian is generally empowered to act in

Donald's best interests, which may mean deviating from intestacy.

¶ 27 Furthermore, in our opinion, the requirement to "consider the permanence of the ward's

disabling condition" means the court should consider the possibility that the ward's disability is a

temporary one which obviates the need for the guardian to take certain actions. If the ward is

under a temporary disability, then court should be less inclined to approve the creation of a new

plan or the replacement of an existing plan. In Donald's case, however, it appears his disability is

permanent and will forever prevent him from engaging in his own personal planning for his

considerable estate. We are not persuaded by the GAL's argument that Donald's permanent

disability should thwart the coguardians' attempts to act in Donald's best interests.

¶ 28 Continuing, the statute states that "[t]he court [that] must consider *** the natural objects

of the ward's bounty." 755 ILCS 5/11a-18 (West 2000). The GAL ties this language to Donald's

lack of testamentary capacity. However, testamentary capacity consists of " 'the ability to know

and understand the natural objects of one's bounty [and] the nature and extent of one's property'

and to form a plan to dispose of the property." In re Estate of Jones, 159 Ill. App. 3d 357, 382,

512 N.E.2d 1050, 1053 (1987) (quoting Mannin v. Mack, 119 Ill. App. 3d 788, 804, 457 N.E.2d

447, 456 (1983)). The GAL contends that Donald's lack of testamentary capacity precludes the

proposed estate plan that would benefit Turks and disinherit the father and the father's additional

children. This is incorrect. No part of the statute requires Donald to have testamentary capacity.

Instead, it is not the ward, but "[t]he court [that] must consider *** the natural objects of the

ward's bounty." 755 ILCS 5/11a-18 (West 2000). Consistent with that statutory language, the

estate coguardians have asked the court to consider the natural objects of Donald's bounty and

determine that Donald's mother, who has been his primary caregiver, should benefit from his

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estate, while other individuals who are closely-related by blood but not involved in Donald life

should not benefit from the estate.

¶ 29 The dispute here centers on how to determine which "others" may benefit from the estate

planning. The trial court's finding—as a matter of law—that Donald's estate plan could not

deviate from intestacy was error. Section 11a-18(a-5) does in fact expressly authorize an estate

plan which deviates from intestacy, by indicating that a proposed trust may serve to benefit

persons other than the ward during the ward's life and that trust property may be conferred to

others beyond the ward's life. 755 ILCS 11a-18(a-5) (West 2000). Further authority for deviating

from intestacy is found in the statement that the "guardian shall not, however, be required to

include as a beneficiary or fiduciary any person who [the guardian] has reason to believe would

be excluded by the ward." 755 ILCS 5/11a-18 (a-5) (West 2000). Reading sections (a) and (a-5)

together, the guardian of the estate of a disabled adult is obligated to propose to the court that a

trust established as part of an estate plan include as beneficiaries only those individuals whom

the guardian has reason to believe the ward would choose to include, if the ward was present and

not under disability. In other words, the guardian is in the position to initially assess who should

be a beneficiary of the proposed estate plan.

¶ 30 The statute's language is clear, however, we also point out that if the General Assembly

had wanted to limit estate plans for adults such as Donald to the rules of intestacy, then it would

have said so, such as it did in section 11-13(b) of the Probate Act, which is a portion of the

statute that applies only to the estates of minors. 755 ILCS 5/11-13(b) (West 2000) (statute

entitled "Duties of guardian of a minor"). Section 11-13(b) authorizes the guardian to petition to

execute an estate plan on behalf of the minor but indicates that any proposed plan must conform

to the rules of intestacy. More specifically, the minors section of the Probate Act states in part:

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"The court, upon petition of a guardian of the estate of a minor, may permit the

guardian to make a will or create a revocable or irrevocable trust for the minor ***;

however, the will or trust must make distributions only to the persons who would be

entitled to distributions if the minor were to die intestate and the will or trust must make

distributions to those persons in the same amounts to which they would be entitled if the

minor were to die intestate." 755 ILCS 5/11-13(b) (West 2000).

Once a minor reaches his or her eighteenth birthday, their court-appointed guardian is

discharged. 755 ILCS 5/24-12 (West 2000). If the emancipated 18-year-old suffers from a

disabling condition (e.g., mental deterioration, physical incapacity, mental illness, or physical

incapacity) which prevents the person from being fully able to manage his or her person or estate

(755 ILCS 11a-2 (West 2000), then a petition for guardianship pursuant to the adult disabled

section of the Probate Act may be filed. 755 ILCS 5/11a-3 (West 2000). As set out above, the

adult disabled section of the Probate Act does not contain the same provisions as the minor

section of the Probate Act. Unlike the minor section of the statute, the adult section of the statute

neither expressly requires nor suggests that a will or trust drafted for the disabled person make

distributions as if that person were to die intestate. 755 ILCS 11a-18(a-5) (West 2000).The

difference between the minor and adult sections is significant to this appeal because it

demonstrates that when the General Assembly wishes to dictate a certain result, it knows how to

do so and it has done so expressly. City of Chicago v. Roman, 184 Ill.2d 504, 705 N.E.2d 81

(1998) (holding that when the General Assembly has used specific language in other similar

statutes, then the absence of that language in a certain statute means the General Assembly did

not intend for that language to apply); Sharp v. Board of Trustees of State Employees' Retirement

System, 2014 IL App (4th) 130125, ¶ 26, 5 N.E.3d 188 (stating that despite similarities between

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two pension boards, the legislature decided to include an express provision granting only one of

those boards the authority to correct its mistakes at any time and that if the legislature intended

for the second board to also have this authority, then "surely it would have stated as much").

Because the adult disabled section of the Probate Act does not require compliance with intestacy

for any disabled adult's estate plan, then the absence of that language confirms the General

Assembly's intention that no such requirement be imposed on the estate plan at issue.

¶ 31 For these reasons, we conclude that the trial court imposed a condition which the General

Assembly did not intend when the court ruled that as a matter of law, Donald's estate plan had to

follow the rules of intestacy.

¶ 32 Furthermore, ruling as a matter of law was in disregard of the trial court's plain obligation

to "determine[]" whether the action proposed by the guardian is "in keeping with the ward's

wishes so far as they can be ascertained" and "in the best interests of the ward." 755 ILCS 11a-

18(a) (West 2000). The coguardians' proposal to leave Donald's estate to his mother, who has

been his fulltime caregiver, and to disinherit other relatives who have purportedly chosen to have

little to no interaction with Donald created a question of fact rather than a question of law.

Donald's ten half siblings, nine of whom are just slightly older than Donald, have not responded

to notice of these proceedings. Donald's father has disputed whether his relationship with Donald

has been lacking. Even if Donald's father was not objecting to the proposed plan, the court must

determine whether the guardians' proposed action is "for the best interests of the ward." 755

ILCS 11a-18(a) (West 2000). This requirement is "intended to substitute a judicial determination

for the guardian's personal discretion in order to provide additional protection to the ward."

Burton v. Estrada, 149 Ill. App. 3d 965, 976, 501 N.E.2d 254, 262 (1986) (the requirement of

court approval is intended to provide additional protection to the ward). "This role is not passive,

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and it is not sufficient for the court to accept the recommendation of the GAL, estate or personal

guardian, or anyone else without further inquiry." (Emphasis in original.) In re Guardianship of

Mabry, 281 Ill. App. 3d 76, 85, 666 N.E.2d 16, 21 (1996). "The trial court is to 'protect[ ] the

incompetent as its ward, vigilantly guarding his property and viewing him as a favored person in

the eyes of the law.' " Mabry, 281 Ill. App. 3d at 85, 666 N.E.2d at 21 (quoting In re Estate of

Berger, 166 Ill. App. 3d 1045, 1055, 520 N.E.2d 690, 697 (1987)).

¶ 33 Donald's father offers a different line of reasoning in support of the trial court's ruling

Howell contends the controlling statute is section 2-2 of the Probate Act which speaks to the

distribution of property from the estate of a child born out of wedlock. 755 ILCS 5/2-2 (West

2006). The law statutes in relevant part:

"The intestate real and personal estate of a resident decedent who was a child born out

of wedlock at the time of death ***, after all just claims against his or her estate are fully

paid, descends and is distributed as provided in Section 2-1 of the Probate Act, [which

sets out the rules of intestacy)] subject to Section 2-6.5 of the Act, [which permits the

probate court to reduce or eliminate distribution to a parent who has willfully neglected,

deserted, or failed to provide support to the child] if both parents are eligible parents. For

purposes of Section 5/2-2, , 'eligible parent' means a parent of the decedent who, during

the decedent's lifetime, acknowledged the decedent as the parent's child, established a

parental relationship with the decedent, and supported the decedent as the parent's child."

755 ILCS 5/2-2 (West 2006).

¶ 34 Howell contends the first clause of section 2-2 plainly indicates parental eligibility is not

to be determined until after Donald's death and that there is no precedent allowing a court to

determine parental eligibility during the lifetime of the ward. Thus, Howell, like the GAL, sees

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no need for a best interests hearing at this time. He concludes the executed estate plan is a correct

one.

¶ 35 We do not find Howell's argument persuasive. There is no statutory language indicating

section 2-2 is to be incorporated into section 11a-18 in order to trump an estate guardian's efforts

to engage in reasoned estate planning for a disabled ward. 755 ILCS 5/2-2 (West 2006); 755

ILCS 5/11a-18 (West 2000). Section 2-2 clearly is relevant (1) only after an individual's death

and (2) only if that individual has died without a will. 755 ILCS 5/2-2 (West 2006). Therefore, it

does not apply to the preparation of Donald's estate plan. The coguardians of Donald's estate

have proposed a trust, a will, and an assignment which dispose of all the estate's assets.

Regardless of whether that particular plan is adopted or some other plan proves to be in Donald's

best interests, a plan will be adopted. Donald will not die intestate. Section 2-2 is not controlling.

For this same reason, it was error for the trial court to purport to preserve Turks' rights after

Donald's death to file a section 2-2 petition to reduce or eliminate distribution to Howell on

grounds of willful neglect, desertion, or failure to provide support.

¶ 36 We conclude that the statutory interpretation advocated by the coguardians is reasoned

and persuasive while the arguments advanced in favor of the trial court's ruling are unsound. We

find that the trial court imposed limitations on the guardians' actions which were not intended by

the legislature. The portion of the order which approved the creation of an estate plan is not in

dispute. The remaining portion of the order, which requires that the plan follow the rules of

intestacy and purportedly preserves Turks' rights under section 2-2, is vacated as erroneous. We

remand with directions to proceed to an evidentiary hearing consistent with the reasoning of this

court. The record does not establish whether an estate plan which deviates from intestacy is in

Donald's best interests. This is to be determined on remand.

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¶ 37 Attorney fees are the only other issue on appeal. The trial court determined that Donald's

estate should not be burdened with the coguardians' attorney fees because Donald derives no

benefit from the appeal. The court made this determination as a matter of law before the

coguardians had prepared a petition detailing their fees.

¶ 38 The coguardians now argue the trial court's reasoning is flawed because a guardian's

permissible actions are not limited to ones that directly benefit the ward. For instance, section

11a-18 of the Probate Act authorizes the coguardians to petition to effect an estate plan that

minimizes inheritance taxes and makes gifts to others. 755 ILCS 5/11a-18(a) (West 2000). They

contend these are examples of actions that are not directly beneficial to Donald but are

contemplated by the law because they may be in his best interests and that guardians are

obligated to take actions that they believe to be in the ward's best interests. They also contend the

appeal was brought in good faith after the trial court first granted fees for petitioning, drafting

and arguing for an estate plan that deviated from intestacy, even though the plan itself was

rejected as a matter of law, but then denied fees for advocating the same position on appeal.

Furthermore, they argue, the award of attorney fees will not significantly reduce the current

value of Donald's estate.

¶ 39 The GAL contends a fee award would not pass a cost-benefit analysis, where Donald

receives no benefit from this attempt to upset the trial court's order and where an award would

further deplete an estate that is already disbursing more than it is earning.

¶ 40 Along those same lines, Howell argues the distributive portions of the estate plan will be

exercised only after Donald's death and will produce no benefit during his lifetime. Howell

contends that Turks and Wilkins are the sole beneficiaries of the disputed estate plan and "[t]hey

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should bear the costs of this appeal." We note that Wilkins is not a party and that we have no

reason to believe she has incurred any attorney fees.

¶ 41 Above, we rejected the reasoning that led to the order on appeal and concluded that an

estate plan that deviates from intestacy may be in Donald's best interests and that this question

should be resolved through an evidentiary hearing. Furthermore, this is a case of first impression

and the coguardians were unable to rely on existing case law to definitively guide their actions.

Accordingly, we consider this appeal to have been a worthwhile pursuit. Even so, without an

actual fee petition, it is impossible to perform the cost-benefit analysis contemplated in In re

Estate of K.E.J., 382 Ill. App. 3d at 425, 887 N.E.2d at 725, where the court is to weigh whether

the cost of litigation is proportionate to the benefits gained. On remand, the trial court is directed

to address the fee petition.

¶ 42 Reversed and remanded with directions.

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