In re Estate of Fallos

Opinion

Filed 11/26/08 NO. 4-08-0218

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Estate of PATRICK FALLOS, ) Appeal from a Disabled Person, ) Circuit Court of PATRICK FALLOS, ) Macon County Petitioner-Appellant. ) No. 05P310 ) ) Honorable ) Albert G. Webber ) Judge Presiding. _________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

Patrick Fallos, a physically disabled man born in 1949,

filed a petition to terminate guardianship over his person. The

trial court denied the petition. Fallos appeals. We reverse and

remand with directions.

I. BACKGROUND

Fallos was born in 1949. Fallos was born into what he

describes as "the average American family." His father worked

for a gas company and his mother was a homemaker. Fallos gradu-

ated from high school with a "C+" average but with straight "A's"

in the industrial arts and began to work various jobs in the

service industry. For example, Fallos worked as a painter and as

a United States mail carrier. At one point, he served as the

vice president of a local union. Fallos later married and had

two children, a boy and a girl. He and his wife divorced in

1980. Fallos' relationship with his children, particularly his daughter, has since become strained.

Four years later, in 1984, Fallos was in a serious car

accident that left him partially paralyzed, semi-spastic, and

confined to a wheelchair. Fallos also suffered partial paralysis

of his diaphragm, which made it extraordinarily difficult for him

to speak and to be understood. Fallos now has a mechanical

device that amplifies the sound of his voice, though others still

have a difficult time making out his words. Fallos can, however,

communicate with others through writing, as he still has use of

one hand. His handwriting is shaky but legible. Nothing in the

record indicates that the accident led to a diminishment of

Fallos' cognitive abilities. After an initial recovery period

following the accident, Fallos lived at home for over 20 years

with the help of in-home care providers. Fallos supported

himself with his monthly social security disability benefits.

Most recently, the Department of Rehabilitation Ser-

vices (DORS) helped Fallos carry out his daily living functions.

However, at some point in 2005, DORS ceased services because of

allegations, which Fallos denies, that Fallos made sexual ad-

vances toward DORS employees. In October 2005, after DORS

discontinued services, Fallos fell from his wheelchair and was

unable to move or call for help. He was not found for three

days, at which point he was taken to the hospital and treated for

a fractured hip and dehydration. Fallos also suffered from

- 2 - delusions during this time period, which may have been due to his

failure to receive any nourishment during the days following his

fall. For example, Fallos believed he had been kidnapped by

"chop-shop" personnel and held at ransom for three days before

being dropped off at his apartment to die. According to a

hospital report written soon after the fall and dated October 6,

2005, Fallos also stated that he had been kept in a box for five

days without food or water and that he had previously worked for

Tom Brokaw. Fallos was also unable to remember three simple

words after a five-minute delay and was unable to use his hands

for writing, wiping his eyes, holding a glass, or manipulating

the hospital bed. The hospital contacted Fallos' son, Jeff, who

lived in Mundelein, Illinois. Jeff expressed concern for his

father but also had concerns about the financial obligations that

might come with further involvement.

Based on Fallos' state of being after the fall, the

hospital psychologist recommended that Fallos be placed under

guardianship. On October 19, 2005, Catholic Charities filed a

petition for temporary guardianship. 755 ILCS 5/11a-4, 11a-8

(West 2004). That same day, the trial court adjudicated Fallos a

disabled person pursuant to section 11a-2(a) of the Probate Act

of 1975 (Act), which states that a person is disabled where,

"because of mental deterioration or physical incapacity[, he] is

not fully able to manage his person or estate." 755 ILCS 5/11a-

- 3 - 2(a) (West 2004). The court placed Fallos in the temporary

guardianship of Catholic Charities. 755 ILCS 5/11a-4 (West

2004). The court also appointed attorney Rodney Forbes to serve

as Fallos' guardian ad litem (GAL). 755 ILCS 5/11a-10(a) (West

2004).

On October 25, 2005, Catholic Charities filed a peti-

tion for plenary guardianship. 755 ILCS 5/11a-3, 11a-8 (West

2004). On November 29, 2005, the trial court held a hearing on

the matter. 755 ILCS 5/11a-11 (West 2004). GAL Forbes recom-

mended that the petition be granted, and the court appointed

Catholic Charities to be Fallos' plenary guardian pursuant to

section 11a-3(a)(1), which states that the court may appoint the

disabled person a guardian of his person if, because of his

disability, he lacks sufficient understanding or capacity to make

or communicate responsible decisions concerning the care of his

person. 755 ILCS 5/11a-3(a)(1) (West 2004). The court gave

Catholic Charities the authority to place Fallos in a nursing

home or other health-care facility if it determined such care to

be necessary or to be in Fallos' best interest. Catholic Chari-

ties placed Fallos at Sullivan Health Care nursing home

(Sullivan). According to GAL Forbes, Fallos did not initially

object to the guardianship because he agreed that he needed to be

placed in a licensed-care facility so that he could recover.

Nearly a year later, on October 13, 2006, Fallos sent a

- 4 - handwritten note of correspondence to the trial court. In the

letter, Fallos asked that the court take note of the progress he

had made with his handwriting, which was once again legible with

some effort on the part of the reader. Fallos complained that

Catholic Charities was not doing a good job as guardian and

stated that Sullivan was a "small central IL farm town care

center [that is], I'm sorry to say, not well educated in DISABLED

INDEPENDENCE." Fallos asked the court to understand that, prior

to his "5[-]day NIGHTMARE" he had been living independently for

20 years and was able to participate in activities within the

disabled community such as electric-scooter racing.

Based on this letter, the trial court scheduled a

status hearing pursuant to section 11a-20(b), which governs the

procedure to be followed where a ward requests that the guardian-

ship order be terminated, revoked, or modified. 755 ILCS 5/11a-

20(b) (West 2004). The court reappointed Forbes as GAL. On

November 17, 2006, Forbes met with Fallos at the court's request

to determine the import of Fallos' October 13, 2006, letter.

Forbes submitted a three-page report, stating that it did not

appear that Fallos' physical condition had significantly im-

proved. However, Forbes did not observe any indication that

Fallos suffered from any mental infirmity. Fallos did not have

any specific complaints about the care he was receiving at

Sullivan, except that he did not receive adequate physical

- 5 - therapy to help him regain his strength. Fallos stated that the

reason he wrote the letter was because he wanted the court to

appoint him an attorney to assist him in applying for services

through DORS so that he could eventually be placed in a less

restrictive environment. Fallos asked to be present at any court

hearing relating to his guardianship.

Forbes then spoke with administrators at Sullivan and

at Catholic Charities, and both indicated that Fallos had previ-

ously exhausted in-home care resources due to inappropriate

sexual comments and activity directed at the staff. The Sullivan

administrator stated that Fallos did not take full advantage of

the physical-therapy programs Sullivan offers. Forbes recom-

mended that guardianship be continued until such time that Fallos

secures a care provider such as DORS and regains the strength he

had prior to the fall.

On December 5, 2006, after several continuances, the

trial court conducted the status hearing. As stated in a docket

entry, the court found that Fallos was not asking that guardian-

ship be removed and by its finding simply maintained the status

quo. However, the docket entry does not indicate Fallos' atten-

dance at the hearing, even though he had earlier informed GAL

Forbes that he would like to be present.

On April 11, 2007, April 26, 2007, and May 7, 2007,

Fallos sent several handwritten notes of correspondence to the

- 6 - trial court. This court notes that Fallos' handwriting seems to

have improved since the October 13, 2006, letter. In the let-

ters, Fallos indicated that his physical condition was no worse

than it was prior to the fall, noting that he had always only had

the use of one hand. Fallos claimed the State was soon to give

him a new $10,000 voice device. Fallos requested that he be

given a more workable wheelchair, to which "any mechanically

inclined person could easily adapt." Fallos stated: "I don't

want to be a system VICTIM. Isn't there anything you can do ***

to speed up my reinstatement process[?]" Fallos expressed a

desire to be served by DORS again and repeatedly noted that he

had exhibited "no sexual misbehavior practices" while at Sulliva-

n. Although he did not believe it was necessary, Fallos indi-

cated a willingness to submit to a psychological examination if

that is what it would take to speed the process along. Fallos

again expressed his dissatisfaction with Sullivan, complaining

that several of the nursing assistants had criminal records, the

facility was understaffed, and two male residents had deliber-

ately hit him. Fallos wondered why he hadn't been given any

"disabled living options" other than Sullivan. Fallos also

expressed a dissatisfaction with Catholic Charities, but he was

vague as to his reasons. At one point, Catholic Charities

apparently asked Fallos whether he would prefer that guardianship

be transferred to his son Jeff, but nothing seems to have come of

- 7 - this.

Based on the content of these letters, the trial court

scheduled another status hearing. Several continuances followed.

Then, on July 5, 2007, Fallos, through his court-appointed

attorney, filed a petition to terminate guardianship pursuant to

section 11a-20. 755 ILCS 5/11a-20 (West 2004). The petition

stated that Fallos had the capacity to perform the skills neces-

sary to care for his person and manage his estate. A hearing on

the petition took place on December 21, 2007.

At the hearing, an agent for Catholic Charities testi-

fied that Fallos had actually been declining in his abilities in

the year preceding the fall. Catholic Charities had been moni-

toring Fallos' case during that time. As of the time of the

hearing, Catholic Charities was unable to find an appropriate

care facility that would be less restrictive than Sullivan.

Catholic Charities contacted DORS, which said that Fallos needed

more help than DORS could give. Catholic Charities was not aware

of any group home that would be a good fit for Fallos. Catholic

Charities stated that Fallos had sufficient coordination to work

a television and DVD player and could walk very short distances

if standing against a wall for support. However, Fallos was not

capable of feeding himself or of addressing daily hygiene needs.

According to Catholic Charities, Fallos still seemed to hold

deluded beliefs regarding the time period surrounding his 2005

- 8 - fall. For instance, Catholic Charities was under the impression

that Fallos still believes he was kidnapped.

GAL Forbes testified that he last met with Fallos six

months prior to the hearing. Forbes stated that Fallos appeared

"very sharp" with the exception that he had an unrealistic

perception of his abilities. When asked whether guardianship

should be terminated if Fallos had unlimited financial resources,

Forbes evaded the question. Forbes feared that if guardianship

were terminated, Fallos would end up on the floor of his apart-

ment again.

Fallos had his attorney read a statement to the trial

court, which was similar in content to the above-mentioned

letters. Fallos additionally asserted that the State would pay

for five hours of assistance per day should Fallos be allowed

home. In closing, Fallos' attorney noted the absence of case law

concerning mentally sound yet physically disabled individuals who

have sought termination of guardianship. Fallos' attorney argued

that Forbes' fears of Fallos again winding up on the floor of his

apartment were unfounded. Fallos' attorney stated that if

guardianship were terminated, Fallos would not wheel himself out

of Sullivan and return to an empty house. Instead, the onus

would simply be on Fallos himself to arrange for the proper home

care or to find a setting other than Sullivan to meet his needs.

Fallos' attorney appreciated that Catholic Charities was acting

- 9 - according to what it believed to be in Fallos' best interests but

reminded the court that Fallos was "not a child."

In closing, Catholic Charities noted it believed the

standard to terminate guardianship was whether termination would

be in the best interests of the disabled person. Catholic

Charities asserted that a disabled person was "someone who [is]

unable to make and communicate responsible decisions for [his]

care that affects [his] daily living activities." The GAL

stated, "Unless there is some evidence that [the] disability has

been discontinued, it's our recommendation that the guardianship

continue."

The trial court stated it would take the matter under

advisement. It wanted to take time to read Fallos' most recent

psychiatric report. The court expressed empathy for Fallos'

situation and noted that it was apparent that Fallos was able to

communicate, though with some difficulty, with his attorney

during the proceedings and "fully comprehend[ed] the nature and

purpose of [the] proceedings." The court stated it would con-

sider Fallos' best interests and also consider what situation

would give Fallos the maximum amount of freedom, and it would

balance those interests to the extent they were competing. As a

final matter, GAL Forbes informed the court that should it deny

Fallos' petition to terminate guardianship, guardianship would

most likely be transferred from Catholic Charities to the office

- 10 - of the State Guardian.

The most recent psychiatric report that the trial court

referenced seems to have been taken in response to Fallos'

doctor's concern that Fallos suffered from depression. In the

report, Fallos indicated to the psychiatrist that he had an

inability to manipulate the muscles to blow his nose and often

becomes choked while trying to speak. The psychiatrist reported

that Fallos had "average" intellectual functioning. During the

examination, Fallos repeatedly stated that he was "normal" and

"not stupid," and the psychiatrist assured him that his intellec-

tual functioning was not in doubt. Fallos did not exhibit

clinical depression, but frequently reported feeling "lonely" or

"blue." Also according to the report, Fallos appeared to respond

positively when someone took the time to listen and endure the

difficulties associated with his poor speech. When asked about

an incident where Sullivan's social services director noticed

that Fallos appeared to have been crying, Fallos responded, "I'm

human." Fallos had some "delusions of persecution" in that he

spoke negatively about the care provided by the nursing assis-

tants, his brother and sister, and DORS. Fallos still believed

his initial hospitalization following the 2005 fall was due to

his being abducted. He believed that the government lied to him.

Fallos had unrealistic expectations as to what he would be able

to handle physically.

- 11 - After considering the evidence at hearing and the

evidence contained in the psychiatric report, the trial court

denied Fallos' petition to terminate guardianship. The court

stated in a docket entry:

"The respondent obviously is subject to pro-

found physical limitations. He is almost

entirely dependent on a wheelchair, and has

very limited use of his extremities. His

speech is indistinct and barely audible,

which is a source of frustration. His abil-

ity to live independently is nil--the respon-

dent is reliant on others to assist him in

all of his basic needs. The nub of the prob-

lem here is that the respondent remains in-

tellectually vigorous. He is subject to the

limitless pain of having an intact mind in a

broken body. This has led to the respondent

underestimating the severity of his physical

limitations and overestimating his ability to

live independently. The result of this was a

reason for the establishment of this

guardianship--the respondent had discharged

his caretakers, and then apparently fell in

his apartment and was discovered days later

- 12 - ***. Guardianship is proper for *** reasons

of either mental or physical disability. The

conditions necessitating guardianship are

still present today as they were in 2005. No

physician has certified otherwise."

On January 17, 2008, Fallos filed a motion to recon-

sider. Fallos noted that the trial court incorrectly stated that

Fallos had discharged his caretakers, implying that Fallos did

not believe he needed them. In fact, DORS caretakers chose to

discontinue services. As such, it was not Fallos' unrealistic

perception of his physical abilities that led to his fall.

Fallos asserted he did not need a guardian because he was capable

of obtaining and arranging the care that he needs to live at home

as he had previously. In the alternative, Fallos asked the court

to modify the guardianship so that he could move to a less

restrictive facility than Sullivan. The court took the matter

under advisement, during which time the office of the State

Guardian replaced Catholic Charities as the guardian.

On March 10, 2008, the trial court denied Fallos'

motion to reconsider. The court noted Fallos believed the court

to have misinterpreted the facts in that Fallos did not discharge

DORS but rather was abandoned by them. However, the court

believed that the circumstances surrounding the fall nevertheless

demonstrated that Fallos was incapable of self-care and an

- 13 - objective appreciation of the extent of his disabilities.

Fallos, through his pro bono attorney, Timothy Tighe, filed the

instant appeal. No party filed a brief in response.

II. ANALYSIS

Fallos attacks his continued status as a ward on

statutory grounds, arguing that guardianship is not proper at all

and, in the alternative, that the trial court has given the

guardian in this case too much authority over Fallos' person. In

regard to the existing plenary guardianship, Fallos' particular

complaint is that it does not allow for Fallos to be placed in

the least restrictive environment.

A. Development of the Law Regarding Guardianship for Physically Disabled Adults

Case law regarding guardianship for adults who are only

physically disabled is exceedingly scarce. Rarer still are cases

where, as here, the physically disabled adult disputes the need

for guardianship. In 1979, the Illinois legislature amended the

Probate Act to add section 11a, entitled "Guardians for Disabled

Adults." In re Estate of Mackey, 85 Ill. App. 3d 235, 237, 406

N.E.2d 226, 229 (1980), citing Ill. Rev. Stat. 1978 Supp., ch.

110 1/2, pars. 11a-1 through 11a-23. The original version of

section 11a-3 stated that guardianship was appropriate where "'a

disabled person[,] *** because of his disability[,] *** lacks

sufficient understanding or capacity to make or communicate

responsible decisions concerning the care of his person'" but did

- 14 - not yet state the degree of certainty with which the trial court

must find this to be true (i.e., clearly and convincingly).

Mackey, 85 Ill. App. 3d at 237-38, 406 N.E.2d at 229, quoting

Ill. Rev. Stat. 1978 Supp., ch. 110 1/2, par. 11a-3(a); compare

755 ILCS 5/11a-3(a) (West 2004) (including the clear and convinc-

ing standard). Even so, the Mackey court noted that the language

contained in section 11a-3 was "a considerable refinement and

development over the previous provision *** which merely defined

an incompetent as one 'incapable of managing his person or

estate.'" Mackey, 85 Ill. App. 3d at 238, 406 N.E.2d at 229,

quoting Ill. Rev. Stat. 1977, ch. 110 1/2, par. 11-2. The new

section clarified that, although a person may be disabled in the

statutory sense of not being fully able to manage his person, a

disabled person still could direct others in such activity and

therefore would not necessarily need a guardian over his person.

Mackey, 85 Ill. App. 3d at 238, 406 N.E.2d at 229-30, citing In

re Estate of McPeak, 53 Ill. App. 3d 133, 136, 368 N.E.2d 957,

960 (1977).

Plenary guardianship is not appropriate where the

respondent is capable of "intelligently direct[ing]" others to

perform tasks for him. McPeak, 53 Ill. App. 3d at 136, 368

N.E.2d at 960. To appoint a plenary guardian, the trial court

must find that the disabled adult is "'totally without capacity'"

as specified in section 11a-3. Mackey, 85 Ill. App. 3d at 238,

- 15 - 406 N.E.2d at 230, quoting Ill. Rev. Stat. 1978 Supp., ch. 110

1/2, par. 11a-12(b); see also 755 ILCS 5/11a-12(b) (West 2004).

A person could be completely paralyzed and in need of 24-hour

care over his person, yet, if he could intelligently direct

others concerning the care of his person, plenary guardianship

would not be appropriate. See Mackey, 85 Ill. App. 3d at 238,

406 N.E.2d at 229-230, citing McPeak, 53 Ill. App. 3d at 136, 368

N.E.2d at 960. On the other hand, if the disabled adult lacks

"'some but not all of the capacity as specified in [s]ection 11a-

3, the court shall appoint a limited guardian.'" (Emphasis

added.) Mackey, 85 Ill. App. 3d at 239, 406 N.E.2d at 230,

quoting Ill. Rev. Stat. 1978 Supp., ch. 110 1/2, par. 11a-12(c);

see also 755 ILCS 5/11a-12(c) (West 2004). As such, the 1979

provisions "envisage[d] and direct[ed] a careful look into the

extent and nature of any disability and a tailoring of guardian-

ship to the requirements and abilities of the individual, with

the purpose of encouraging self-reliance and independence."

Mackey, 85 Ill. App. 3d at 239, 406 N.E.2d at 230. This goal

permeates a number of the provisions in section 11a. Mackey, 85

Ill. App. 3d at 239, 406 N.E.2d at 230; see also 755 ILCS 5/11a-

3(b), 11a-9, 11a-11(e), 11a-12(c), 11a-14.1, 11a-17(a) (West

2004).

Since Mackey and the enactment of section 11a, under

which the instant case is governed, the court in In re Estate of

- 16 - Galvin, 112 Ill. App. 3d 677, 445 N.E.2d 1223 (1983), set forth

some guidance as to just how difficult it is to establish that a

respondent completely lacks the ability to make or communicate

responsible decisions regarding the care of his person, such that

he would need a plenary or even a limited guardian. In Galvin,

the respondent suffered a series of strokes that left him with a

weak right side and in need of a walker. The respondent's other

physical disabilities included advanced arthritis and congestive

heart failure. The respondent could die if he did not take his

heart medication as prescribed. The strokes also left the

respondent somewhat confused and delusional. For instance, the

respondent believed he had invented the snowmobile and could

produce fire by pointing his finger. The respondent also did not

believe he had a heart condition, although he stated he continued

to take his heart medication. Galvin, 112 Ill. App. 3d at 678-

79, 445 N.E.2d at 1223-24. The appellate court endorsed the

following comments by the trial court in affirming the trial

court's refusal to appoint any sort of guardian to the respon-

dent:

"'There is no way in God's world that I

am going to adjudicate him a disabled person.

He is physically suffering from some disabil-

ity. *** He is eccentric *** but there is no

way I am going to adjudicate him in need of a

- 17 - guardian. *** He lives a bizarre, strange

life. I might not want to do it, but unless

you can make an offer of proof that is going

to show me that he does not understand the

things he's doing--. He understands.'"

Galvin, 112 Ill. App. 3d at 679-80, 445 N.E.-

2d at 1224.

Similarly, the court in In re Estate of Bennett, 122

Ill. App. 3d 756, 461 N.E.2d 667 (1984), provided guidance as to

when it might be appropriate to appoint a limited, rather than a

plenary, guardian. In Bennett, a wife filed a petition request-

ing that she be appointed plenary guardian over her husband, who

had been disabled by a stroke and subsequent brain surgery. The

husband's mother and sister cross-petitioned, requesting that one

or both of them be appointed limited guardian. Bennett, 122 Ill.

App. 3d at 757-58, 461 N.E.2d at 668. The respondent in Bennett

had a speech impediment, had difficulty writing and walking, and

experienced lapses in memory. However, the trial court deter-

mined that, when provided with the necessary information, he was

able to make a responsible decision. The court held that the

respondent was disabled but was "not incapable of knowing what he

wants to do. He merely needs assistance." Bennett, 122 Ill.

App. 3d at 762, 461 N.E.2d at 671. As such, the court found that

limited guardianship was more appropriate than plenary guardian-

- 18 - ship, as the intent of the statute in appointing a guarding is to

provide the respondent with as much authority to guide his person

as possible in terms of his condition. Bennett, 122 Ill. App. 3d

at 762, 461 N.E.2d at 671, citing Ill. Rev. Stat. 1981, ch. 110

1/2, par. 11a-3(b).

A final development of note is the legislature's 2004

amendment to section 11a-3 regarding the appointment of a guard-

ian to specify that the ward's inability to make or communicate

decisions regarding the care of his person must be proven by

"clear and convincing" evidence, creating a relatively high

standard to appoint a guardian. See Pub. Act 93-435, §5, eff.

January 1, 2004 (2003 Ill. Laws 3019, 3019-20) (amending 755 ILCS

5/11a-3 (West 2002)).

B. As Applied to the Instant Case

Typically, the moving party in a petition to terminate

or modify guardianship has the burden to show that the existing

order of guardianship should be terminated or modified. The

standard is whether the ward's capacity to perform the tasks

necessary for the care of his person or the management of his

estate has been demonstrated by clear and convincing evidence.

755 ILCS 5/11a-20(a) (West 2004). However, the ward's "capacity

to perform the tasks necessary for the care of his person or

management of his estate" (755 ILCS 5/11a-20(a) (West 2004)) does

not mean the ward must literally and physically have the capacity

- 19 - to care for himself, wash himself, feed himself, move himself, et

cetera. Rather the phrase, "capacity to perform the tasks

necessary for the care of his person or management of his es-

tate," includes the ward's "sufficient understanding or capacity

to make or communicate responsible decisions concerning the care

of his person." 755 ILCS 5/11a-3(a) (West 2004). Any contrary

interpretation of the phrase, "capacity to perform the tasks

necessary for the care of his person or management of his es-

tate," would lead to inconsistencies within the Act concerning

what type of person is subject to plenary or limited guardian-

ship, depending upon whether a guardianship was being put in

place for the first time or whether it was being modified at a

later date.

The record shows by clear and convincing evidence that

Fallos is not "totally without capacity" to direct others con-

cerning the care of his person. This much is clear from Fallos'

ability to communicate his wishes in letters to the court, the

most recent psychological report (which stated that Fallos was of

average intelligence), and the trial court's observations:

"[Fallos] remains intellectually vigorous" and "is subject to the

limitless pain of having an intact mind in a broken body." As in

Galvin, whether we agree with Fallos' decisions or not, "'he ***

understand[s] the things he's doing.'" Galvin, 112 Ill. App. 3d

at 680, 445 N.E.2d at 1224. As in Bennett, Fallos is "not

- 20 - incapable of knowing what he wants to do." Bennett, 122 Ill.

App. 3d at 762, 461 N.E.2d at 1224.

Plenary, or absolute, guardianship is not appropriate

for Fallos, and the existing order for plenary guardianship

should at the very least be modified to be a limited guardianship

aimed at fitting Fallos' unique situation. Again, the Act

"envisage[d] and direct[ed] a careful look into the extent and

nature of any disability and a tailoring of guardianship to the

requirements and abilities of the individual, with the purpose of

encouraging self-reliance and independence." Mackey, 85 Ill.

App. 3d at 239, 406 N.E.2d at 230.

We acknowledge that Fallos' attorney did not request

with precision the specific remedy of remand for modification

from plenary to limited guardianship. However, Fallos' attorney

has argued throughout this case that existing plenary guardian-

ship is not appropriate given Fallos' improved condition.

Fallos' attorney also argued, beginning with his motion to

reconsider, that the guardianship be modified so that Fallos

could be placed in a less restrictive facility. For these

reasons, we have the authority to remand as described above.

As a final point of discussion, we note that the unique

circumstances of this case make it almost unfair to place the

burden on Fallos to demonstrate the need to terminate or modify

guardianship. The initial guardianship order was put in place

- 21 - during Fallos' lowest state of cognitive functioning following an

injury that left him without nourishment and delirious. Though

his physical state improved very little if at all in the years

following the fall, he seemed to have regained a great deal of

mental capacity (compare the hospital report dated October 6,

2005, to the most recent psychological report in the record). In

2005, the trial court appointed a plenary guardian based on what

ended up being a temporary mental state and energy level. In

regard to Fallos' state of being after his recovery from the

fall, the trial court never made the specific finding that

Fallos, as a result of his disability, clearly and convincingly

lacked sufficient understanding to direct others concerning his

care and was totally without capacity in that regard.

III. CONCLUSION

For the aforementioned reasons, we reverse the trial

court's judgment and remand for the court to modify the plenary

guardianship as directed.

Reversed and remanded with directions.

TURNER, J., concurs.

MYERSCOUGH, J., dissents.

- 22 - JUSTICE MYERSCOUGH, dissenting:

I respectfully dissent. I am firmly convinced we

should affirm. The ward has failed to establish by clear and

convincing evidence his capacity to perform the tasks necessary

for the care of his person or the management of his estate. The

court specifically stated in its decision "guardianship is proper

for reason of either mental or physical disability. 755 ILCS

[5/11a-2(a) (West 2004)]. The conditions necessitating guardian-

ship are still present today as they were in 2005. No physician

has certified otherwise." Moreover, both the ward's attorney and

his GAL agreed the wardship should continue.

The physical disability alone is sufficient for wardsh-

ip under the statute. However, this gentleman additionally

suffers delusional thinking and has an unrealistic perception of

his abilities.

"Although the client is clearly in a diffi-

cult position as he is rendered to his wheel

chair and has difficulty speaking audibly,

due to the partial paralysis of his dia-

phragm, he does not appear to be realistic

regarding his physical capabilities. Client

often becomes choked while speaking, adding

to his difficulty to converse. He also re-

ported substantial embarrassment regarding

- 23 - his tendency to cough during conversation.

An evaluation by his primary care physician

also indicated client's unrealistic view of

his physical capabilities. Overall, client

appears to hold delusional beliefs about his

past and present treatment and is having

extreme difficulty adjusting to life in his

current environment."

The court was correct: it had to factually decide removal of

disability, and the placement in the ward's best interests,

giving him maximum freedom. Here the disability was not removed

so the court did not go on to address best interests. The issue

here is whether the ward has established by clear and convincing

evidence his capacity to perform tasks necessary for his care.

The ward's attorney, GAL, and the court concurred the ward had

not done so. The evidence at the hearing establishes:

"Catholic Charities: ward cannot live

independently, needs 24 hour care, cannot

feed himself, perform normal hygiene, walk

without assistance, hard for him to vocalize,

delusional thinking.

GAL: unrealistic perception of his abil-

ities, recommend guardianship remain, incapa-

ble of caring for himself physically on his

- 24 - own."

For these reasons, the trial court should be affirmed.

- 25 -