The newsletter of the ISBA’s Section on Elder Law
The demise of Drews: The right of a guardian to file for divorce on behalf of a ward
On October 4, 2012 the Illinois Supreme Court finally removed In re Marriage of Drews, 503 N.E.2d 339 (1986), from life support by overturning the nearly 26-year-old opinion. (Karbin v. Karbin, 2012 IL 12815 (Ill. 2012). While multiple cases had siphoned away the life force of the Drews decision over the past two decades, its narrow holding had continued to have a significant impact for many disabled adults and their guardians.
In Estate of Drews, decided December 1986, the Supreme Court held that a guardian did not have standing to initiate a dissolution of marriage action on behalf of a ward. The court found that Section 11a-18(c) of the Probate Act, which allows a guardian of the estate to appear and represent a ward in legal proceedings, was limited to matters directly involving the ward’s estate and that there was no comparable language in Section 11a-17, which governs rights and responsibilities over the ward’s person. In making this decision, the court said that it was following a strong majority rule across the country. In re Marriage of Drews, 503 N.E.2d 339 340 (1986).
The decision was short and concise. Justice Seymour Simon dissented, arguing that the court’s holding was too restrictive. “If the initiation of a legal proceeding though personal can be shown to be beneficial to the maintenance and welfare of the ward, the court ought to allow it.” In re Marriage of Drews, 503 N.E.2d 339 342 (1986).
Four years later the Supreme Court narrowed the Drews holding by allowing a ward to continue a dissolution action filed by a man before he was declared incompetent and made a ward of the court. In re Marriage of Burgess, 725 N.E. 2d 1266 (2000). The Court distinguished the two cases on their facts—Mr. Burgess had filed for divorce fourteen months before a court declared him incompetent and appointed his sister as guardian, whereas Mr. Drew’s mother had filed for divorce after she was appointed her son’s guardian. The Burgess Court explained that, while the Drews court did not spell out why express authority is necessary, it was due to the very personal nature of the decision to terminate a marriage and the inability to know, for sure, that the ward would have wanted to end it. That reasoning would clearly not apply when a ward had filed for divorce prior to being adjudicated incompetent. As such, the court held that “[a] guardian’s authority to continue a dissolution action on behalf of a ward may be implied from section 11a-17.” In re Marriage of Burgess, 725 N.E.2d 1266 1270 (2000). The Burgess opinion then expanded on the notion of a guardian’s implied authority, noting that prior decisions had established the implied authority of guardians to make very personal decisions for wards. (In re Marriage of Burgess, 725 N.E.2d 1266 1271 (2000), citing cases that allowed a guardian to decide on the withdrawal of artificial nutrition and hydration, the adoption of a ward or authorizing an abortion for a ward. As a result, the court found that, “[a] guardian’s authority to continue a dissolution proceeding on behalf of a ward is also encompassed within this broad description of a guardian’s powers. The status of a ward’s marriage impacts the ward’s support, care, comfort, and development of self-reliance and independence. These are the areas in which a guardian may be empowered to act under subsection (a) [of Section 11a-17].” In re Marriage of Burgess, 725 N.E.2d 1266 1271 (2000).
The concept of the guardian’s implied authority continued to expand after Burgess. However, it wasn’t until October 4, 2012 that the Supreme Court revisited the right of a guardian to initiate a divorce case on behalf of a ward. Karbin v. Karbin, 2012 IL 12815 (Ill. 2012).
Karbin v. Karbin involved a contentious divorce case that, while initiated by the competent husband, was being pursued by the incompetent wife’s guardian after the husband voluntarily dismissed his petition. The husband moved to dismiss the counterpetition filed by the guardian, citing Drews. The trial court dismissed the case and the Appellate Court affirmed. As its first order of business, the court justified its decision to overturn Drews, finding that the court had shifted away from Drews. Karbin v. Karbin, 2012 IL 12815 at 6 (Ill. 2012).
In fact, the limitation on the guardian’s authority ordered in Drews was abandoned only three years later in Estate of Longeway, when the Supreme Court held that a guardian has implied authority to act in the ward’s best interests regarding the use of life-sustaining measures. Estate of Longeway, 549 N.E.2d 292 (1989). Later that year, the Supreme Court reaffirmed that expansion of authority by holding that a guardian may decide to remove life support. Estate of Greenspan, 558 N.E.2d 1194 (1980).
The Karbin court noted other opportunities where the Supreme Court deviated from Drews. Karbin v. Karbin, 2012 IL 12815 at 8 (Ill. 2012). For instance, although the court could have limited its ruling in favor of the guardian in the Burgess case because the facts were easily and clearly distinguishable from Drews, the court included in its decision a discussion of and holding for the implied authority of the guardian to continue the divorce case. The Supreme Court’s tilt away from limited express authority espoused in Drews toward implied authority created inconsistent rulings for no apparent reason. Karbin v. Karbin, 2012 IL 12815 at 8 (Ill. 2012).
After justifying its decision to overturn Drews, the Karbin Court pointed out that the divorce in Drews had been filed prior to the adoption of no-fault grounds in Illinois. At that time, divorce involved one guilty party and one injured party and it was the sole choice of the injured party to severe the marriage. This was considered a uniquely personal decision to which no one else was privy. Once the concept of injury was removed from divorce, the decision to end a marriage would be no more personal than the decision to end life support, have an abortion or undergo involuntary sterilization. In fact, the court noted, divorce was not as final or permanent as those decisions were. Karbin v. Karbin, 2012 IL 12815 at 11 (Ill. 2012).
There was simply no reason why a guardian should not be allowed to make the personal decision to file for divorce using the substituted judgment standard permitted by the Probate Act. “As is apparent, the traditional rule espoused in Drews is no longer consistent with current Illinois policy on divorce as reflected in the Illinois Marriage and Dissolution of Marriage Act.” Karbin v. Karbin, 2012 IL 12815 at 11 (Ill. 2012).
Finally, this court found that continued application of the holding in Drews could put an incompetent spouse at the mercy of an ill-intentioned competent spouse. “Because under the Probate Act the guardian must always act in the best interests of the ward, when a guardian decides that those best interests require that the marriage be dissolved, the guardian must have the power to take appropriate legal action to accomplish that end.” Karbin v. Karbin, 2012 IL 12815 at 12 (Ill. 2012).
The Court summed up its discussion succinctly: “This ensures that the most vulnerable members of our society are afforded fundamental fairness, equal protection of the laws and equal access to the courts. Therefore, In re Marriage of Drews is hereby overruled.” Karbin v. Karbin, 2012 IL 12815 at 14 (Ill. 2012).
Upon remand, the court directed the Circuit Court to hold a hearing in order to determine if divorce is in the ward’s best interests, clarifying that the guardian always acts as the hand of the court and subject to the court’s direction. In order to prevent a guardian from pursing a divorce for his or her own purposes, the guardian must satisfy a clear and convincing burden of proof that the divorce is in the ward’s best interests. This higher burden is in accordance with the standard applied to other highly personal issues. Karbin v. Karbin, 2012 IL 12815 at 15 (Ill. 2012).
Most probate and domestic relations practitioners agree that the decision to overturn Drews was long overdue. It was absurd that a guardian had standing to petition the court to withdraw life support from a ward, but could not seek to dissolve a marriage because that decision was too personal to the incompetent ward. This does not mean that wards will be thrown into divorce court at the whim of their guardians because it will be up to the Probate Court to decide whether pursuing a divorce is clearly and convincingly in the ward’s best interests. In the meantime, say a prayer for Drews if you must. It lived a long and unproductive life. ■