In re Estate of Kirk
2017 IL App (1st) 143967
| Ill. App. Ct. | 2017Background
- Philip Dawson (son) petitioned to be guardian of his 94-year-old mother, Ilene Kirk, alleging diminished cognition, refusal of medical care, poor nutrition, and potential financial exploitation of a family trust; he filed for temporary guardianship and a guardian ad litem.
- Ilene and her other son, John (who holds powers of attorney executed Nov. 25, 2014), opposed the petition; Ilene submitted a letter from Dr. Nasreen Syed stating she was oriented and able to make day-to-day decisions.
- The court appointed a GAL (John Hensley) and ordered a medical evaluation under 755 ILCS 5/11a-9; Philip selected neurologist Dr. Barry Riskin to evaluate Ilene.
- Dr. Riskin’s report was equivocal: MoCA score 8/30 (adjusted to 9/30), noted diminished cognitive performance but stated he could not determine the nature/type of disability or whether guardianship was needed, and recommended (if needed) further neuropsychological testing.
- The GAL concluded Ilene was a person with a disability but did not recommend guardianship based on the evidence then available; he found no clear impropriety in financial management but noted past transfers to Philip.
- The trial court denied further evaluation requests, then granted Ilene’s motion to dismiss Philip’s guardianship petition under section 2-619(a)(9) (dismissal with prejudice), relying on Dr. Syed’s letter and Dr. Riskin’s report; Philip appealed.
Issues
| Issue | Plaintiff's Argument (Philip) | Defendant's Argument (Ilene) | Held |
|---|---|---|---|
| Whether trial court properly dismissed guardianship petition under §2-619(a)(9) | Dismissal improper because no "affirmative matter" defeated petition; physician reports were insufficient to negate his well-pleaded allegations | Ilene relied on medical reports/letters and the GAL report to show no disability and thus sought dismissal | Reversed: dismissal under §2-619 was improper because the submitted medical writings (Dr. Syed’s letter and Dr. Riskin’s equivocal report) did not constitute the requisite affirmative matter or proper affidavits to defeat the petition |
| Whether trial court abused discretion by refusing additional medical evaluation (Dr. Llano) recommended by Dr. Riskin | Court should have ordered further evaluation per §11a-9 to obtain adequate medical report supporting or refuting guardianship need | Court reasonably declined further testing to avoid burdening a frail elderly person and had already ordered one qualified evaluation | Affirmed: court did not abuse discretion in denying further evaluation; it complied with §11a-9 by ordering an evaluation and selecting a qualified evaluator |
| Proper procedural vehicle to contest factual allegations in guardianship petition | Philip contends Ilene improperly used §2-619 to contest facts; such disputes require summary judgment or evidentiary hearing | Ilene countered that medical writings amounted to affirmative matter negating disability | Held: §2-619 is not a shortcut to litigate disputed factual matters; defendants should not use it simply to present contrary evidence to well-pleaded facts |
| Sufficiency of Dr. Syed’s letter and Dr. Riskin’s report as statutory §11a-9 or Rule 191(a) compliant affidavits | Philip argued the writings were inadequate and could not support dismissal | Ilene argued the documents showed Ilene’s capacity and supported dismissal | Held: Dr. Syed’s unsigned letter failed Rule 191/§11a-9 form/content requirements; Dr. Riskin’s equivocal report did not negate need for guardianship and therefore could not serve as dispositive affirmative matter |
Key Cases Cited
- Smith v. Waukegan Park Dist., 231 Ill. 2d 111 (Illinois Supreme Court) (definition and limits of what constitutes "affirmative matter" under §2-619)
- Leetaru v. Bd. of Trustees of the Univ. of Ill., 2015 IL 117485 (Illinois Supreme Court) (§2-619 admits complaint’s sufficiency but asserts affirmative matter defeats claim)
- In re Estate of Silverman, 257 Ill. App. 3d 162 (App. Ct.) (physician affidavit fully refuting disability can support §2-619 dismissal)
- In re Estate of Hanley, 2013 IL App (3d) 110264 (App. Ct.) (treating physician reports/affidavits complying with §11a-9 can constitute affirmative matter defeating guardianship petition)