Can court appoint unwanted guardian ad litem?

Illinois Appellate Court Reports

J.H. v. ADA S. McKINLEY COMMUN. SER., 1-05-2132 (Ill.App. 12-29-2006) J.H. and J.D., v. ADA S. McKINLEY COMMUNITY SERVICES, INC., RALPH BURLINGHAM, KENNETH HONDERICH, MARGARET ORTINAU, CLAUDINE ROBINSON, GALE SPENCER, VICTORIA LAWSON, CAROL WINN, WALTER C. McCRONE, GILBERT GAVLIN, URSULA HOWARD, MARY A. KLINGENBERGER, ROBERT S. MOORE, GREGORY McLAUGHLIN, MICHAEL T. HEALY, ANNA R. LANGFORD, SAMUEL PANAYOTOVICH, BOBBY RUSH, JESSIE C.WHITE, MARGARET SMITH, BYRON E. WINTON, RON BEAN, WILLIAM C. CAMPBELL, DEBRA McGEE, DRENDA LAKIN, BRODIE WESTBROOKS, MARIE BOYD, GLORIA BASHER, JESSICA CONNER, a/k/a Jessica Chambers, CHERI SMITH, GWENDOLYN R. GILL, MELANIE SCOTT, THERESA SPEARS, a/k/a Theresa Lockett, ETHEL HYLTON, RUBY E. ROBERTSON, BEVERLY BROWN, TOLEDA RICE, CHERYL DREAKFORD, CASSANDRA BOWDEN, JOCELYN NICHOLS, LISA L. MALTBIA, FREDDIE RAINEY, BEVERLY GORDON, JACQUELINE BONDS, MYRA HOLMES, LETHA HOLLEY, CASSANDRA DALE, BETTY COBBS, WILLIAM WHITE, and RICHARD HILL, Defendants-Appellees. No. 1-05-2132. Appellate Court of Illinois, First District, Fifth Division. December 29, 2006.

Appeal from the Circuit Court of Plaintiffs-Appellants,
Cook County Honorable James S. Quinlan, Judge Presiding.

JUSTICE GALLAGHER delivered the opinion of the court.

The issue in this case is whether a trial court has the
authority to sua sponte appoint a guardian ad litem for
competent adult plaintiffs, without a hearing, where
plaintiffs are already represented by counsel who objects
to the appointment on their behalf.

BACKGROUND

This case was previously before this court, but was
dismissed for lack of jurisdiction.[fn1] It is now properly
before this court pursuant to Supreme Court Rule 304(a).
155 Ill. 2d R. 304(a). Plaintiffs, J.H. and J.D., competent
adults, appeal from an award of fees and expenses in the
amount of $120,585.98, to be paid by them out of the
proceeds of the settlement obtained for them by their
counsel, to a guardian ad litem who was appointed sua
sponte by the trial judge, over the objection of
plaintiffs’ counsel. Plaintiffs ask this court to decide
the following issues:

(1) Whether the trial court had inherent authority to
appoint a guardian ad litem for plaintiffs who had
allegedly suffered permanent and severe physical and
psychological injury, where plaintiffs were competent
adults already represented by counsel at the time of the
appointment;

(2) Whether plaintiffs, as competent adults already
represented by counsel, were denied substantive and
procedural due process in connection with the trial
court’s appointment of a guardian ad litem;

(3) Whether the trial court had improper ex parte
contacts with its appointed guardian ad litem; and

(4) What must a guardian ad litem prove in a fee petition
and is a respondent entitled to a trial?[fn2]

The action below was a personal injury case. Plaintiffs,
represented by counsel, sought damages for injuries that
they suffered as a result of the care they received in
Illinois’s foster care system. In 1995, plaintiffs, by and
through their father and next friend, Todd Higgin, filed
their action against defendants for injuries that
plaintiffs suffered while wards of the Illinois Department
of Children and Family Services (DCFS), as a result of
abuse plaintiffs received from their respective foster
fathers, Richard Hill and William White, both of whom were
pedophiles. Defendant, Ada S. McKinley Community Services,
Inc., was a private child-welfare agency (the McKinley
agency) that DCFS had assigned to monitor plaintiffs’
foster placements. The McKinley agency knew that Richard
Hill, the foster father with whom J.D. was placed, was a
prior multiple pedophilic sex offender and active
alcoholic. Hill severely sexually abused J.D. for 2Ë? years
while he was in Hill’s home. The McKinley agency also knew
that William White, the foster father with whom J.H. was
placed, had psychiatric infirmities precluding placement
of children in his home. White severely sexually abused
J.H. for eight months while she was in White’s home. Both
White and Hill were subsequently convicted of aggravated
criminal sexual assault. The McKinley agency subsequently
forfeited its child-welfare agency license in connection
with these incidents of abuse and neglect. The other
defendants in the case were McKinley employees, officers
and directors. At the time plaintiffs filed their action,
they were minors. During the pendency of this case,
plaintiffs reached the age of majority.

An initial settlement offer totaling $20,000 to both
plaintiffs was made on behalf of the defendants. That offer
was not accepted. The maximum amount that was eventually
offered to plaintiffs while they were minors was a total of
$1 million to be divided between the two. That offer was
also not accepted.

The case was assigned to Judge Susan Zwick on the complex
case management call, during which time she held several
settlement conferences and recommended a settlement in the
sum of $6 million. The case was also pretried before Judge
Donald P. O’Connell before his retirement, and he also
recommended settlement of $6 million.

After the minor plaintiffs became adults, defendants’
insurer offered the sum of $2 million to settle the claim
of J.H. only. No offer was made with respect to J.D. This
offer was not accepted.

After the complex case management call was discontinued,
plaintiffs’ case was assigned in early 2002 to Judge James
S. Quinlan for trial. The trial judge held one pretrial
conference early in his involvement. He never made any
recommendations with respect to settlement. On October 27,
2003, the trial judge, without notice to plaintiffs and
without a hearing, appointed former judge Brian L. Crowe to
be plaintiffs’ guardian ad litem. Subsequently, plaintiffs
moved to vacate the October 27, 2003, order. On December 1,
2003, after a hearing on the motion to vacate, the trial
judge denied the motion. In so doing, the trial judge
refused to hold a hearing on plaintiffs’ legal competency or
the presumed lack thereof.

Plaintiffs were adults when the trial judge sua sponte
decided to appoint the guardian ad litem. The trial judge
apparently relied on medical records provided by defense
counsel which had indicated that J.D. was in a nursing home
and may have been suffering from schizoaffective disorder.
Despite the speculation engaged in by one of the defense
counsel that J.D. might therefore be a person who could not
make decisions for herself, defense counsel acknowledged
that she was an attorney, not a psychiatrist. Nevertheless,
no expert opinion was ever produced by anyone that either
plaintiff was disabled. No petition was filed by defense
counsel to find plaintiffs disabled. The record indicates,
however, one of the defendant’s counsel, although not
taking a position regarding plaintiffs’ motion to vacate
the appointment of a guardian ad litem, reviewed the law
“to aid and assist” the trial court and opined that the
trial court “on [its] own motion file a petition or just
make [its] own motion to adjudge a person to be disabled.”
Despite plaintiffs’ request, the trial judge never followed
any such procedure and further asserted that it was
appointing the guardian ad litem outside of the provisions
of the Probate Act of 1975 (755 ILCS 5/1-1 et seq. (West
2004) (the Probate Act).

The trial judge refused to hold a hearing on plaintiffs’
competency or disability. Although voicing his personal
opinion that plaintiffs were disabled by virtue of their
being abused by a foster father, the trial judge refused to
make any finding of disability. Additionally, although the
trial judge ordered that plaintiffs be examined by another
psychiatrist, the trial judge refused to allow plaintiffs’
counsel to be present, other than generally stating that he
was doing it to “protect” plaintiffs, and noting
plaintiffs’ allegations of mental and psychological damages
as part of their personal injury claim, the trial judge
refused to specify the purpose of the appointment of the
guardian ad litem. Moreover, in a written order entered on
December 2, 2003, the trial judge granted the guardian ad
litem’s request to clarify that members of his firm, in
addition to himself, could assist him in undertaking his
duties[fn3] as guardian ad litem.

On December 30, 2003, plaintiffs filed their notice of
appeal in case No. 1-03-3787 purporting to initiate an
appeal from the October 27, 2003, order appointing the
guardian ad litem, the December 1, 2003, order denying
their motion to vacate the October 27, 2003, order, and the
December 2, 2003, order which once again appointed Judge
Crowe as plaintiffs’ guardian ad litem and allowed the
assistance of Judge Crowe’s law firm. As noted earlier, we
dismissed the appeal for lack of jurisdiction.

Thus, although plaintiffs’ pleadings alleged that
plaintiffs had suffered severe, irreparable and permanent
psychological and emotional harm from which they will never
recover, plaintiffs were never found to be incompetent or
disabled. Indeed, it was later acknowledged by the guardian
ad litem, in a report submitted to the court on July 13,
2004, that plaintiffs were functional adults who were aware
of what was entailed in a trial and that they were willing
to testify and would make “strong witnesses.” The guardian
ad litem further reported that they trusted their counsel
and were fully cooperating with him. Additionally, the
guardian ad litem reported that their counsel was
adequately representing them. The guardian ad litem opined
that plaintiffs were not disabled and were capable of
settling their case. Nonetheless, the guardian ad litem
continued to remain involved in the case.

It is disputed as to whether plaintiffs’ counsel or the
guardian ad litem suggested[fn4] the use of private
mediators but the parties agreed to private mediation of
both claims. J.H.’s case was mediated before retired judge
Anthony Bosco. This resulted in a settlement to J.H. in the
sum of $2,150,000. J.D.’s case was mediated before attorney
Case Ellis. There was no settlement of J.D.’s case.

On January 18, 2005, Judge Quinlan granted summary judgment
to all of the defendants, with the exception of Richard
Hill. Thereafter, the insurer of the defendants offered the
sum of $1 million to J.D. conditioned upon the summary
judgment standing. J.D. accepted the offer.

In awarding the sum of $120,585.98[fn5] to the guardian ad
litem, the trial judge, who previously had refused
plaintiffs’ request for an explanation of the guardian ad
litem’s role and refused to clearly define the scope of his
appointment of the guardian ad litem, stated that his
reason for the appointment of the guardian ad litem was his
concern about whether the attempt to settle the case was
being “conducted properly” by plaintiffs’ counsel. Judge
Quinlan also stated that the guardian ad litem was
appointed by him only to observe and report to the court,
and that the guardian ad litem was not to participate in
the negotiations. One of the attorneys from the guardian ad
litem’s law firm confirmed that it was her understanding
that they were there to “observe and report,” not to
participate.

Plaintiffs now appeal from the order appointing the
guardian ad litem and from the trial court’s order
requiring them to pay what they characterize as a
“magnificent sum” for the guardian ad litem.

ANALYSIS

The first issue we address is whether the trial court had
inherent authority to appoint a guardian ad litem for
plaintiffs who had allegedly suffered permanent and severe
physical and psychological injury, but where plaintiffs
were competent adults already represented by counsel at the
time of the appointment. There is no dispute that
plaintiffs were neither minors nor had they been adjudicated
as disabled pursuant to the Probate Act. This issue
presents a question of law and involves statutory
construction; thus, our review is de novo. In re Mark W.,
No. 1-05-3370, slip op. at 10 (June 16, 2006).

Not surprisingly, we have found no case involving the
situation with which we are faced. Specifically, this case
involves the situation where the trial court, sua sponte,
without a hearing and without notice, appointed a guardian
ad litem, for competent adult plaintiffs —
plaintiffs who were already represented by counsel who
objected on their behalf to the appointment of the guardian
ad litem, whose role was not defined by the court and whose
substantial fees were subsequently approved by the trial
judge to be paid by the competent adult plaintiffs.

It is axiomatic that, under Illinois law, an adult is
presumed to be competent to manage his or her legal affairs
until the contrary is shown. In re Barbara H., 183 Ill. 2d
482, 495, 702 N.E.2d 555, 561 (1998); In re Phyllis P., 182
Ill. 2d 400, 401, 695 N.E.2d 851, 852 (1998); People ex
rel. Drury v. Catholic Home Bureau, 34 Ill. 2d 84, 95, 213
N.E.2d 507, 512 (1966); In re Lawrence S., 319 Ill. App. 3d
476, 481, 746 N.E.2d 769, 774 (2001). This principle
applies even where a party has been adjudicated mentally
ill. In re Phyllis P., 182 Ill. 2d at 402, 695 N.E.2d at
852 (noting that “[u]nderlying this presumption [of legal
competency] is the distinction between mental illness and
the specific decisional capacity to exercise or waive legal
rights”); see also People v. Eddmonds, 143 Ill. 2d 501,
519, 578 N.E.2d 952, 960 (1991) (mental illness alone does
not raise a bona fide doubt as to a person’s ability to
consult with counsel or his fitness to stand trial).
Moreover, the Illinois Supreme Court has explained that
“serious constitutional questions would be presented by a
statute that provided for the exercise of supervisory power
[by the court] after the ward’s disability had been
removed.'” In re Estate of Wellman, 174 Ill. 2d 335, 346,
673 N.E.2d 272, 277 (1996), quoting Hoff v. Meirink, 12
Ill. 2d 108, Ill, 145 N.E.2d 58, 59 (1957.)

The case of In re Estate of Wellman involved the rights of
an individual who had been found to be disabled, but later
restored by the court to competency. The court, in deciding
that the guardian no longer had standing to represent the
interests of the former ward, explained that upon
restoration to competency, the now-competent former ward
became reinvested with the rights that he had lost when
adjudicated an incompetent, which included, among other
things, the right to represent his own interests. In re
Estate of Wellman, 174 Ill. 2d 335, 346-47, 673 N.E.2d 272,
277 (1996). As plaintiffs correctly note, if an adult
individual who has been restored to competency has the right
to represent his own interests, then it follows even more
clearly that one who has never been declared disabled has
that right. Thus, plaintiffs contend they were exclusively
vested with the authority to control their own affairs,
including the right to select counsel and to negotiate
through counsel in whatever manner they chose to settle or
not settle their case.

Our review of the record and the briefs filed in this
appeal clearly reveals that the trial judge in the instant
case failed to understand the enormous legal distinction
between adults who are psychologically injured or mentally
ill and adults who are legally incapacitated, i.e.,
disabled. As a result, the trial judge exceeded his
authority.

Long ago, in the case of Moats v. Moore, 199 Ill. App. 270
(1916), the court explained that the trial court had a duty
to summon a jury to determine whether a person, declared
insane and later found to be sane by habeas corpus
proceedings, was a fit person to have the care of her
property, where the person had filed a petition to have a
conservator removed. Here also, assuming the trial court
had valid concerns about the mental health of the adult
plaintiffs, it was incumbent upon the court, and the court
had a duty, to hold a hearing to determine the legal
competency of the adult plaintiffs when the trial court
initially, over the objection of plaintiffs’ counsel,
appointed sua sponte a guardian ad litem. Certainly, after
plaintiffs filed a motion to vacate the appointment of the
guardian ad litem, the trial court had a duty to hold a
hearing to determine the legal competency of the adult
plaintiffs. The court’s personal opinion that plaintiffs
were disabled is not a sufficient basis for appointing the
guardian ad litem for these legally competent adults
already represented by counsel.

During the proceedings below, the trial judge resolutely
refused plaintiffs’ request to hold a hearing to determine
whether plaintiffs were or were not disabled or legally
incapacitated. Nor was there much discussion of the salient
points raised in plaintiffs’ motion to vacate the
appointment of the guardian ad litem. Moreover, as
plaintiffs correctly note, the trial judge engaged in a
personal invective wherein he made attacks upon the
integrity of the appellate court and plaintiff’s counsel,
as described in plaintiff’s brief and readily apparent in
the transcripts of the proceedings.

In sua sponte appointing the guardian ad litem, without a
petition or a hearing, the trial judge did not comply with
the Probate Act and asserted that he was making the
appointment outside of the Probate Act. Nonetheless, in
dispensing with the procedures required by the Probate Act,
the trial judge did not state whether his decision
appointing a guardian ad litem was based upon any
particular case or statute nor did he specify under what
authority he was appointing the guardian ad litem. Other
than announcing that he had the power to do so, the trial
judge refused to state the source of his authority for
appointing a guardian ad litem for these competent adult
plaintiffs who objected, through their private counsel, to
the appointment of the guardian ad litem. In this appeal,
the guardian ad litem attempts to provide the basis for the
court’s decision. He asserts that his appointment was
allowed under the doctrine of parens patriae. We find this
argument generally unavailing, and particularly meritless
under the circumstances of the instant case involving
competent adult plaintiffs.

Under the common law of England, control over a disabled,
i.e., incompetent adult’s person and property was vested in
the sovereign as parens patriae. See, e.g., In re Estate of
Nelson, 250 Ill. App. 3d 282, 286, 621 N.E.2d 81, 84
(1993). “In this country the State succeeded to the power
of the king as parens patriae, and under our form of
government the power is exercised by the courts only through
legislative enactment.” (Emphasis added.) Cowdery v.
Northern Trust Co., 321 Ill. App. 243, 256, 53 N.E.2d 43,
49 (1944); accord In re Estate of Nelson, 250 Ill. App. 3d
at 286, 621 N.E.2d at 84 (noting that “the court’s
jurisdiction over the persons and property of disabled
adults is wholly a creature of statute”). This court more
recently has stated that the doctrine of parens patriae no
longer applies with respect to control over a disabled
person because this authority is now exercised by the
courts pursuant only to the Probate Act. In re Marriage of
Casarotto, 316 Ill. App. 3d 567, 570, 736 N.E.2d 1169, 1172
(2000). In any event, the doctrine of parens patriae has no
application whatsoever to plaintiffs here because they were
not minors (see In re E.G., 133 Ill. 2d 98, 111, 549 N.E.2d
322, 327 (1989) (“The parens patriae authority fades * * *
as the minor gets older and disappears upon her reaching
adulthood”). Nor does the doctrine have any application
here because plaintiffs were not disabled adults. See In re
Guardianship of Smythe, 65 Ill. App. 2d 431, 441, 213 N.E.2d
609, 614 (1965) (distinguishing minors from disabled adults
but further acknowledging that circuit courts of this state
have no inherent jurisdiction under the parens patriae
doctrine over the estates or persons of insane adults
because such power is exercised by the courts only through
legislative enactments). Plaintiffs here were competent
adults. The trial court had no inherent power to appoint a
guardian ad litem for the competent adult plaintiffs under
the doctrine of parens patriae because competent adults are
not wards of the court and never can be. Only adults
adjudicated as incompetent can be wards of the court.

Thus, we agree with plaintiffs that the trial court’s
authority to appoint a guardian ad litem for an adult is
derived from the provisions of the Probate Act. As
plaintiffs correctly note, the only instance provided by
statute where a guardian ad litem can be appointed in
regard to a presumed competent adult is where a petition
has been filed to adjudicate such person disabled. 755 ILCS
5/11a-10(a) (West 2004). That section provides as follows:

“(a) Upon the filing of a petition pursuant to Section
11a-8, the court shall set a date and place for hearing to
take place within 30 days. The court shall appoint a
guardian ad litem to report to the court concerning the
respondent’s best interests consistent with the provisions
of this Section, except that the appointment of a
guardian ad litem shall not be required when the court
determines that such appointment is not necessary for the
protection of the respondent or a reasonably informed
decision on the petition. * * * The guardian ad litem may
consult with a person who by training or experience is
qualified to work with persons with a developmental
disability, persons with mental illness, or physically
disabled persons, or persons disabled because of mental
deterioration, depending on the type of disability that is
alleged. The guardian ad litem shall personally observe
the respondent prior to the hearing and shall inform him
orally and in writing of the contents of the petition
and of his rights under Section 11a-11. The guardian ad
litem shall also attempt to elicit the respondent’s
position concerning the adjudication of disability, the
proposed guardian, a proposed change in residential
placement, changes in care that might result from the
guardianship, and other areas of inquiry deemed
appropriate by the court.” (Emphasis added.) 755 ILCS
5/11a-10 (West 2004).

The trial court here failed to follow the provisions of the
Probate Act and had no authority to sua sponte, without a
hearing, appoint a guardian ad litem over these competent
adult plaintiffs.

Recently, this court determined that the juvenile court
lacked authority to appoint a guardian ad litem over a
mentally disabled adult even though she had been
adjudicated incompetent because she was already adequately
represented by a plenary guardian and the court had held no
hearing or made any findings that the plenary guardian was
not fulfilling her duties. In re Mark W., No. 1-05-3370
(June 16, 2006). After explaining that it is the Probate
Act that governs proceedings involving disabled adults and
that the statute clearly prescribes the procedure that must
be followed by a court when appointing a guardian ad litem
for a disabled person, we concluded that the appointment
should have been made pursuant to the Probate Act. Again,
however, this court cannot emphasize enough that in the
present case, the trial court was not even dealing with
“disabled adults” but, rather, this case involves
“competent adults.” As one court explained: “Even though the
trial court has the discretion to appoint a guardian ad
litem in some circumstances, it does not generally have the
discretion to appoint a guardian ad litem for a competent
adult.” Hall v. Hall, 241 Ga. App. 690, 692, 527 S.E.2d
288, 289-90 (1999).

As this court has explained: “Where there has not been a
judgment fixing the mental status of the person alleged to
be incompetent, the court necessarily has the power to
determine all facts essential to a proper adjudication upon
the need for such guardian. This is fundamental.” (Emphasis
added.) Cowdery v. Northern Trust Co., 321 Ill. App. 243,
254, 53 N.E.2d 43, 48 (1944).

The trial judge also refused to inform plaintiffs’ counsel
as to the purpose for which the guardian ad litem was being
appointed, other than stating a desire to “protect” the
litigants. The guardian ad litem now asserts that there
were “several” reasons for his appointment including the
trial judge’s concern that his order requiring one of the
plaintiffs to be examined by a psychiatrist was being
frustrated, the trial judge’s personal belief that the
plaintiffs “may” be disabled, the trial court’s concern
over plaintiffs’ counsel’s settlement strategy and the
trial court’s belief that the guardian ad litem might
assist in settling the case. It became clear later that the
trial judge had decided to assign the guardian ad litem to
merely monitor plaintiffs’ counsel and report to the court.
None of the trial judge’s “concerns” or “beliefs” justified
his appointment of a guardian ad litem for these competent
adult plaintiffs who were being represented by counsel. A
trial court has no inherent authority to appoint a guardian
ad litem for competent adult litigants merely because he
disagrees with their private counsel’s settlement or
litigation strategy.[fn6] “It is uncontroverted * * * that
an injured plaintiff who is a competent adult can reject any
settlement offer no matter how advantageous and no matter
how risky a trial on the merits could be and that the trial
court would have no authority to overrule that rejection.”
(Emphasis added.) Ott v. Little Co. of Mary Hospital, 273
Ill. App. 3d 563, 573, 652 N.E.2d 1051, 1058 (1995).
Moreover, the Illinois Supreme Court has noted that, “[i]n
the ordinary case, the judiciary plays no role in presuit
settlement agreements and the decision to settle rests
solely in the discretion of the settling parties” (Emphasis
added.) In re Guardianship of Babb, 162 Ill. 2d 153, 163,
642 N.E.2d 1195, 1200 (1994).

The guardian ad litem has argued on appeal that courts have
approved the appointment of guardians ad litem for
allegedly disabled adults outside the probate guardianship
procedure. The cases cited by the guardian ad litem are
factually inapposite and none involve the appointment of a
guardian ad litem, without notice, without a hearing, and
over the objections of competent adults who are already
represented by private counsel.

One of the cases cited by the guardian ad litem is In re
Estate of Dyniewicz, 271 Ill. App. 3d 616, 648 N.E.2d 1076
(1995), a case involving a married couple who, as
co-guardians of the persons and estates of their five
grandchildren, were sued by their grandchildren, all of
whom filed petitions for a final accounting and distribution
of their estates. The circuit court appointed a guardian ad
litem for the “Estate of Dyniewicz.” In their appeal, the
co-guardians argued, among other things, that the trial
court “lacked subject matter jurisdiction to appoint a
guardian ad litem since not all of the Dyniewicz children
were minors.” Dyniewicz, 271 Ill. App. 3d at 623, 648 N.E.2d
at 1082. The court, in rejecting this argument, stated as
follows: “Although the circuit court is under no duty to
appoint a guardian where a party has attained the age of
majority, a parent or guardian may represent their
interests in a judicial proceeding [citation], particularly
under circumstances such as these.” (Emphasis added.)
Dyniewicz, 271 Ill. App. 3d at 623, 648 N.E.2d at 1082. We
believe the statement did not necessarily address the
issue. Moreover, as support for its statement, the court
cited, generally, In re Spain, 54 Ill. App. 3d 26, 369
N.E.2d 305 (1977). However, In re Spain involved a mentally
ill adult who contended that a guardian ad litem should
have been appointed for him “because of his age and the
nature of the action against him.” In re Spain, 54 Ill.
App. 3d at 29, 369 N.E.2d at 307. With respect to the issue
of his age, the In re Spain court actually stated as
follows:

“It is well established that a minor who is a defendant
in a purely civil action may not act in his own name but
must appear through a representative, such as a parent or
a guardian ad litem. [Citation.] In the present case, the
record clearly reveals that respondent was 19 years of
age at the time of the hearing. In Illinois, persons of
the age of 18 and over are considered of legal age
[citation] and a parent or guardian need not represent
their interests in a judicial proceeding. Regardless of
the type of proceeding involved, there is no duty placed
upon the court to appoint a guardian where a party has
attained the age of majority.” In re Spain, 54 Ill. App.
3d at 29, 369 N.E.2d at 307.

Thus, contrary to the Dyniewicz court’s interpretation of In
re Spain, and contrary to the guardian ad litem’s reliance
on Dyniewicz, a trial court has no inherent authority to
appoint a guardian ad litem for competent adults. We
further note that the Dyniewicz court, in rejecting the
argument of the co-guardians that it lacked subject matter
jurisdiction to appoint the guardian ad litem since not all
of the Dyniewicz children were minors, additionally noted
that “none of the parties ever objected to the appointment
of a guardian ad litem or to his fees.” Dyniewicz, 271 Ill.
App. 3d at 623, 648 N.E.2d at 1082. This is yet another
reason why Dyniewicz is inapposite.

The guardian ad litem also cites In re Estate of Nelson,
250 Ill. App. 3d 282, 621 N.E.2d 81 (1993), in support of
its argument that the Probate Act does not limit a trial
court’s inherent authority to appoint a guardian ad litem
to protect a litigant’s interests. Again, In re Estate of
Nelson did not involve a competent adult. Rather, it
involved a disabled person, George. As the court in Nelson
explained, “When he was adjudicated incompetent in 1956,
George became a ward of the court entitled to its
protection.” In re Estate of Nelson, 250 Ill. App. 3d at
286, 621 N.E.2d at 84. The court further explained that its
jurisdiction continued until such time as the adjudication
of the ward’s disability was terminated or the ward died.
In re Estate of Nelson, 250 Ill. App. 3d at 287, 621 N.E.2d
at 85. It was in that context that the court decided that
it had the authority to appoint a guardian ad litem to
investigate allegations that George’s living conditions
were unacceptable. Specifically, the court in In re Estate
of Nelson stated as follows:

“When, as in this case, a court is charged with a duty to
protect the interests of its ward, we believe that by
implication it has such powers, although not expressly
given by the statute vesting the court with jurisdiction
over the ward, * * * as are necessary to properly
discharge that duty, including the appointment of a
guardian ad litem to investigate unverified charges of
neglect.” (Emphasis added.) In re Estate of Nelson, 250
Ill. App. 3d at 287-88, 621 N.E.2d at 85.

Contrary to the guardian ad litem’s contention, In re Estate
of Nelson, which involved a ward of the court, does not
stand for the proposition that a trial judge can appoint a
guardian ad litem for competent adults outside of the
Probate Act.

We recognize that a guardian ad litem serves a different
purpose and has a far different role than a guardian of the
estate or person. Nonetheless, in contending that his
appointment here was appropriate, the guardian ad litem
cites inapposite cases involving “wards” of the court and
alleged “incapacitated” persons. Moreover, procedural
safeguards found in the Probate Act are in place that govern
the appointment of a guardian ad litem, as well as plenary
guardians and limited guardians. See 755 ILCS 5/11a-3,
11a-12, 11a-14, 11a-17 (West 2000). “Even a limited
guardian may be appointed only if the court finds
guardianship to be ‘necessary’ for the protection of the
person, estate or both of the disabled person.
[Citations.]” (Emphasis added.) In re Guardianship of
Mabry, 281 Ill. App. 3d 76, 87, 666 N.E.2d 16, 23 (1996).

Plaintiffs have raised, as a separate argument, that they
were denied substantive and procedural due process in
connection with the trial court’s appointment of the
guardian ad litem because they were competent adults
already represented by counsel. As we noted earlier, the
Illinois Supreme Court has stated that” ‘serious
constitutional questions would be presented by a statute
that provided for the exercise of supervisory power [by the
court] after the ward’s disability had been removed.’ ” In
re Estate of Wellman, 174 Ill. 2d at 346, 673 N.E.2d at 277,
quoting Hoff, 12 Ill. 2d at 111, 145 N.E.2d at 59. More to
the point, it has been explained that “[t]he retention of a
guardian ad litem for a competent adult seriously impinges
upon the defendant’s rights to due process guaranteed by
the United States Constitution. U.S. Const. Amend. 14.”
State v. Ladd, 139 Vt. 642, 644, 433 A.2d 294, 295-96
(1981). But, as noted earlier, the trial judge failed to
understand the enormous legal distinction between adults
who are psychologically injured or mentally ill and adults
who are legally disabled. Plaintiffs, through their
counsel, made a valiant attempt to explain this principle to
the trial judge.

We recognize that there will be times where a trial court
has valid concerns about the mental capacity of a litigant
and its need or duty to protect the rights of one who,
although not yet adjudicated disabled, may nonetheless
actually be disabled. But the trial judge here, in
presuming his authority to appoint a guardian ad litem was
absolute, failed to recognize the competing principles
involved in such a situation.

We believe that a case from another jurisdiction, New York
Life Insurance Co. v. V.K., 184 Misc. 2d 727, 711 N.Y.S.2d
90 (1999), explains those competing principles well,
although we point out that the case was yet another where
no objection to the appointment of a guardian ad litem had
been raised. The case involved a woman, V.K., at risk of
losing her home for non-payment of rent where the New York
City Department of Social Services, contending that V.K.
was an adult incapable of adequately prosecuting or
defending her rights, had sought leave to intervene for the
appointment of a guardian ad litem for V.K. and also sought
to vacate a default judgment entered against V.K.

The New York court examined “the range of issues that arise
in determining whether to appoint a guardian ad litem for
a party.”V.K., 184 Misc. 2d at 728, 711 N.Y.S.2d at 92. The
court acknowledged its duty to protect the mentally infirm,
but additionally recognized an important competing
principle when it stated as follows:

“On the other hand, this policy [to afford rigorous
protection of the rights of the mentally infirm]
recognizes that the justification for legal intervention
into the lives of persons suffering mental incapacities
without those persons’ consent, though undertaken to
protect their safety, health, and welfare, must outweigh
the restrictions on liberty that the intervention entails.
[Citation.]” V.K., 184 Misc. 2d at 732, 711 N.Y.S.2d at
94.

The V.K. court went on to recognize the distinction between
a guardian ad litem and other guardians. The court noted as
follows: “Appointment of a guardian ad litem is a far less
restrictive intervention than, for example, a commitment,
guardianship, or conservatorship. [Citations.]” V.K., 184
Misc. 2d at 732, 711 N.Y.S.2d at 94-95. In the instant
case, the guardian ad litem has emphasized, and this court
is aware of, the distinction. Nonetheless, the appointment
of a guardian ad litem over competent adult litigants
represented by counsel is of no small import. The guardian
ad litem fails to recognize, as did the trial judge in the
court below, the competing principles at stake. As the V.K.
court further explained:

“Nevertheless, guardians ad litem, though appointed to
protect and assist a party, do substitute their judgment
and decisions for the decisionmaking that the party
otherwise would exercise in a proceeding and curtail the
party’s autonomy and freedom in that respect.
Since V.K. has not consented to anyone stepping in to
make decisions for her, whose services she may be
obligated to pay for, that curtailment of her freedom must
be sufficiently justified. Any ‘[l]oss of liberty calls
for a showing that the individual suffers from something
more serious than is demonstrated by idiosyncratic
behavior.’ [Citation.]” (Emphasis added.) V.K., 184
Misc. 2d at 733, 711 N.Y.S.2d at 95.

See also In re Becan, 26 A.D.2d 44, 45-46, 270 N.Y.S.2d 923,
927-28 (1966) (in a case involving a ward of the court, the
court explained that where the work of a guardian ad litem
would be merely an unnecessary duplication of the work
performed by the administrator or his attorney and the
appointment of a guardian ad litem is unnecessary for the
protection of the rights and interests of the incompetent,
it is improper to burden the estate with the expense
incident thereto). The matter of the expenses and fees
assessed to these competent adult plaintiffs, without their
consent, is no inconsequential matter, particularly where,
as here, that amount was $120,585.98 and these competent
adult plaintiffs never agreed to either the guardian ad
litem’s hourly billing method or the guardian ad litem’s
billing rates and, indeed, were relying on their contingent
fee agreement with retained counsel.

Interestingly, in arguing that the trial court had inherent
authority to appoint a guardian ad litem outside of the
Probate Act, with all of its procedural safeguards, the
guardian ad litem cites Graham v. Graham, 40 Wash. 2d 64,
240 P.2d 564 (1952), but that case provides support for our
decision. Graham v. Graham involved a writ of prohibition
seeking to prevent the appointment of a guardian ad litem.
While stating the general proposition that a trial court had
the inherent authority to appoint a guardian ad litem for a
party when reasonably convinced that the party was “not
competent, understandingly and intelligently, to comprehend
the significance of legal proceedings,” the case actually
stands for the proposition and the court there so held that
such a party was entitled to a full and fair hearing and an
opportunity to defend against the appointment of a guardian
ad litem and where the court fails to provide these
essentials, a court would be proceeding in excess of its
jurisdiction. Graham v. Graham, 40 Wash. 2d at 67-69, 240
P.2d at 565-66.

The Graham v. Graham court, unlike the trial court here,
recognized that “a most serious question arises when there
is timely objection or resistance to the appointment [of
the guardian ad litem] either by the alleged incompetent or
his attorney.” Graham v. Graham, 40 Wash. 2d at 68, 240
P.2d at 565-66. As the court explained, in that situation,
“the changes which might result from the appointment of a
guardian ad litem are of such significance as to be
permitted only after a full, fair hearing and an
opportunity to be heard is accorded to an alleged
incompetent.” Graham v. Graham, 40 Wash. 2d at 68, 240 P.2d
at 566. Also, in such a situation, “an adjudication of
incompetency must precede or at least be contemporaneous
with the appointment of a guardian ad litem; and in that
connection[,] an alleged incompetent has a right to defend
and is entitled to be heard.” Graham v. Graham, 40 Wash. 2d
at 67-68, 240 P.2d at 566. Thus, assuming arguendo that the
trial court has some authority outside of the Probate Act,
to appoint a guardian ad litem for the purpose of
ascertaining whether plaintiffs are competent to manage
their own affairs and to act in their own best interests
with respect to any settlement offers made by defendants,
this authority would be exceeded where, as here, the trial
court fails to provide the procedural due process
safeguards of notice and hearing.

We note that the guardian ad litem has additionally
suggested in this appeal that the trial court appointed him
because it was concerned about a potential conflict between
the interests of J.D. and J.H., in light of plaintiffs’
counsel’s representation of both clients, that arose during
a pretrial settlement conference. This argument is meritless
for all of the reasons noted by plaintiffs in their reply
brief. In addition, the court’s appointment of one guardian
ad litem for both plaintiffs seriously undermines the
court’s concern about a conflict.

In the previous appeal, as here, plaintiffs contended that
the trial court’s order appointing the guardian ad litem
was void for lack of subject matter jurisdiction and
personal jurisdiction. As noted earlier, we dismissed the
appeal for lack of jurisdiction. We now consider the
argument and conclude that, because the trial court
appointed a guardian ad litem for these competent adult
plaintiffs without providing the essential procedural due
process safeguards of notice and hearing, the court was
proceeding in excess of its jurisdiction and its order is
void. Therefore, we vacate the award of fees to the guardian
ad litem. We recognize that our disposition may seem harsh.
Nonetheless, we believe that it would be harsher yet to
require competent adult plaintiffs to pay fees for a
guardian ad litem where no guardian ad litem was necessary
and where plaintiffs were denied procedural due process
after their timely objections to the appointment.

In In re Prior, 116 Ill. App. 3d 666, 452 N.E.2d 676
(1983), this court reversed an award of fees to a guardian
ad litem where no “administration” of an estate was
required, the respondent’s interests were otherwise
protected by private counsel and there was no necessity for
the appointment of a guardian ad litem. Later, this court
decided that, although the result in Prior may have been
warranted on its particular facts including that the
petitions lacked merit, we disagreed that guardian ad litem
fees may never be awarded prior to or without the
“administration” of a respondent’s estate. In re Serafin,
272 Ill. App. 3d 239, 244, 649 N.E.2d 972, 976 (1995). But
the factual scenario and the procedural posture of In re
Serafin are both markedly different from the situation in
the present case. In In re Serafin, although there was
never any finding that the ward was disabled, the
petitioners had never sought any hearing on the petition
for the appointment of a permanent guardian and there was
no finding that the appointment of the guardian ad litem
was not necessary. In re Serafin is inapposite.

By this decision we do not hold that a trial court cannot
appoint a guardian ad litem for an adult litigant not yet
adjudged disabled, where the court has concerns about the
mental capacity of the litigant and there is no objection
to the appointment of a guardian ad litem. This was not one
of those instances. In no event should a trial court’s
right to appoint a guardian ad litem be considered absolute
and certainly a hearing should be had as to the actual
competency of the adult litigant. Moreover, we believe that
it is incumbent upon the guardian ad litem to ascertain the
competency of the adult litigant and report to the court as
soon as possible. See, e.g., In re Estate of Doyle, 362
Ill. App. 3d 293, 296, 838 N.E.2d 355, 359 (2005) (where the
party eventually was adjudicated disabled at a hearing, the
court noted that it received a prehearing report and a
posthearing report from the guardian ad litem recommending
the appointment of guardians of both the estate and the
person). The trial judge’s personal opinion that a guardian
ad litem is required is not a justification for dispensing
with the procedural safeguards afforded by the Probate Act
or the procedural due process requirements of notice and
hearing. The court’s failure to comply with either the
Probate Act safeguards or procedural due process
requirements was particularly troubling in the instant case
where the competent adult plaintiffs, through their private
retained counsel, objected to the appointment of the
guardian ad litem which, nonetheless, remained ongoing and
indeed, because plaintiffs were competent, was later
confirmed to be unnecessary.

We note that plaintiffs have raised additional arguments
that the trial court abused its discretion in awarding fees
to the guardian ad litem where the guardian ad litem failed
to carry his burden of proof as to the reasonableness of
the rate or the amount of those fees. In view of our
decision, however, we need not address the merits of the
argument, nor do we need to address the asserted procedural
irregularities relating to the amended fee petition. We also
need not decide the import of the trial court’s ex parte
contact with the guardian ad litem.

Accordingly, for the reasons stated, we vacate the order of
the trial court appointing the guardian ad litem and we
vacate the award of fees and expenses to the guardian ad
litem. This matter is remanded to the circuit court for an
order returning the sequestered funds to plaintiffs.

Orders vacated and cause remanded with directions.

O’BRIEN, P.J., and O’MARA FROSSARD, J., concur.

[fn1] J.H. and J.D. v. Ada S. McKinley Community Services,
Inc., No 1-03-3787 (2005) (unpublished order under Supreme
Court Rule 23 (166 Ill. 2d R. 23)).

[fn2] We have summarized and rearranged the order of these
issues to coincide with the order in which we have chosen
to address them.

[fn3] The guardian ad litem has acknowledged that the trial
judge informed him of his appointment, ex parte, in the
trial judge’s chambers.

[fn4] We note that although the competence and performance
of the guardian ad litem may be relevant to the issue of
the reasonableness of its fees and expenses of $120,585.98,
it has absolutely no bearing on the issue of the trial
court’s authority to appoint a guardian ad litem over
competent adults.

[fn5] The guardian ad litem reduced his request for expenses
from $5,157.44 to $1,942.98 after conceding that the
photocopy and facsimile charges were not proper.

[fn6] During a hearing on the guardian ad litem’s fee
petition, the trial court interjected, acknowledging that,
“[A]t the end of a hearing we had, I suggested that we talk
settlement to see if something could be done. And I came to
the conclusion that at that point with the attitudes
nothing could be done and that’s when I started thinking
about the possibility of a guardian ad litem. I didn’t
appoint one for some time until later.”

One of the attorneys who worked at the guardian ad litem’s
law firm and was assigned to assist the guardian ad litem
also testified that one of their functions was to help
plaintiffs’ counsel defeat defendants’ motions to dismiss.
The guardian ad litem also expended time in opposition to
plaintiffs’ motion to vacate the appointment of the
guardian ad litem, which included working on the previously
dismissed appeal. Additionally, an attorney who worked with
the guardian ad litem in essence testified that, after
opining that plaintiffs were adequately represented, the
role of the guardian ad litem was to facilitate settlement
by providing a report to the trial judge only, but not to
the parties, in the hope that the defense would be
concerned about what was in the report and be more willing
to settle the case.