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Guardianship as a lethal weapon

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Parimasn

Guest
My father (70), stepmother (56) and my dependent youngest brother (46), lived together in rural southern Illinois for the past 20 years. I live in Florida. My father contracted Alzheimer’s disease in mid ‘01 and in March of '02; our Stepmother had Dad placed in a Nursing home. I stayed in touch by phone with my stepmother throughout that process and was satisfied that Dad was in a clean, well-managed facility.

In mid '03, my brother informed me that our stepmother had been "dating" and in late '03 she left the estate and moved in with her new love interest. I "discussed" this move with my stepmother and she said she needed to "go on with her life" but that my brother would be able to live at the residence for as long as he wanted.

My brother was very intelligent and a prolific writer but had physical and undiagnosed psychological problems (panic attacks, etc) that prevented him from working and even functioning in society. He was the "caretaker" of Dad's estate, fixing things around the property. He had no criminal record. He was harmless and he was fine in his little world that was Dad's residence. He had no income and was dependent upon Dad for his well being.

In January of '04, Carla told me she was getting tired of paying the gas, phone, and electric bills for my brother. She said he should get a job and pay the bills. I called my brother to make him aware of her concern (he was surprised at my news) and I suggested SS disability as a possible source of income. He said he'd look into that. I called him in the weeks after this talk to follow up on his progress but only left messages. He never returned my calls. He was too proud or ashamed to ask for help.

On March 9,'04, my birth mother called saying the police were at her door saying my brother had committed suicide. I flew to Ill. and handled my brother's affairs with the help of my mother, brother and sister. My brother had left a 14-page hand written suicide letter addressed to me outlining the last 3 months of his life.

While in Illinois, I went to the circuit clerk's office and received all the court records involving my father. I found that our stepmother was appointed temporary guardianship of my father on 8/30/02. That same day, 8/30/02, she walked into the county clerk's office with her newly acquired POA and signed a quitclaim deed removing Dad from joint tenancy. A few days or weeks later, she went to the local bank and secured a $20,000 mortgage on that property and handed that money to her daughter. All of this unknown to my family or me. There is jurisdictional defect surrounding this guardianship appointment, but that’s another matter.

My brother's suicide letter outlines the fact that the stepmother withheld all financial support to him since January of 04. He was afraid she would quit paying the gas bill and he would freeze. He found some quarters at the residence that my father and stepmother had collected over the years. He took them and changed them into paper money ($500) and kept that money in case he had to pay a gas or electric bill. (BTW, That money was with the suicide letter with instructions to return it to the stepmother, which I did). She found out about the quarters and called him saying he was to get "out of her house". She didn't care where he went, just "get out". She called a neighbor the next morning asking her to go tell my brother to "get out of her house"(she did not do that, BTW). My brother felt backed into a corner with no escape and shot himself. I'm currently in a court battle with the stepmother to have her removed as guardian and divorced from my father.

I'm exploring a wrongful death civil lawsuit based at least in part on this guardianship requirement as stated in Illinois Probate law: (755 ILCS 5/11a‑18) (from Ch. 110 1/2, par. 11a‑18) Sec. 11a‑18. It reads as follows:

Duties of the estate guardian. (a) To the extent specified in the order establishing the guardianship, the guardian of the estate shall have the care, management and investment of the estate, shall manage the estate frugally and shall apply the income and principal of the estate so far as necessary for the comfort and suitable support and education of the ward, his minor and adult dependent children, and persons related by blood or marriage who are dependent upon or entitled to support from him.

I’m finding that it’s difficult to prevail in wrongful death suits where suicide is involved. I understand and accept the legal concept of “comparative negligence”. I feel that my brother’s suicide letter shows a “continuous causal connection”. My stepmother had knowledge of his prior suicidal tendencies. I feel that were it not for our stepmother’s conduct, a jury would agree, by a preponderance of the evidence, that my brother’s death would not have occurred.

My stepmother needed my brother to leave the residence. She used her status as guardian and her prior knowledge of my brother’s condition to make that happen. Three weeks after his death she sold the property and personal effects at public auction. Those funds are currently being held in trust pending the divorce settlement.

One attorney has turned me down saying the reward would not be worth the financial effort. I’m currently waiting for a second opinion. My problem seems to be that my brother was a dependent and there’s no real money. No McDonald’s vs hot coffee millions. Our cause has financial loss but also includes a cause Illinois recognizes called “loss of society”.

I’m looking for legal help. My family is learning that justice is very expensive. Anyone hear of a similar situation? Are there any Illinois or federal agencies available? I’m open to suggestions.
 


BlondiePB

Senior Member
I'm sorry about the tragedy with your brother. One of the attorneys that regulary post on the forum will correct anything wrong with this post.

A legal guardian must have court authorization for maintenance etc. of a ward's dependent. Since your brother was 46, he needed to apply for Social Security Disability as you properly advised him to do so.

Based on the information you provided regarding your father's guardian, his wife, she did do things that were unacceptable with estate and is legally responsible and liable for those actions that were done without court approval.

You first battles need to be over the guardianship of your father and your brother's estate if he has any assests of value.
 
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Parimasn

Guest
Thanks BlondiePB for your response. I agree that my first responsibility is to get the guardianship/divorce settled. I've been working on that since April of this year. On the 14th of this month, I was finally appointed guardian of the person of my father. My stepmother is maintaining her status as guardian of the estate pending the divorce settlement. She's been living with another man for the past year, all the while collecting Dad's SS and pension checks. She's willing to resign as guardian if she gets 80% of the real estate proceeds, 100% of the personal property proceeds and have Dad pay her $20,000 of credit card debt. I've suggested to my attorney that we separate the guardianship from the divorce, but he tells me that even as plenary guardian, I would not be able to initiate divorce proceedings. I'm still looking for precedent on that one.

I've got to act on the wrongful death soon. I'm fighting a two year statute of limitations. But you're right, the guardianship/divorce issue will settle first.

Thanks again
Danny
 

BlondiePB

Senior Member
Your brother was not a LEGAL dependent of your father; therefore, your brother was not entitled to support from the guardian of the estate, your step-mom. Legal dependents of wards are minor children and/or adult children that are within the age (up to 24) that are still enrolled in school/college. The wrongful death lawsuit is a "big stretch" with which I do not see happening.

What type of attorney do you have (i.e. Gen. Practice, Divorce, etc.)? He was absolutely wrong about you, as guardian of the person, not being able to file for divorce on behalf of your father. You can as long as you follow proper procedure. I have some other important questions:

1. Did your step-mom file for divorce prior or after being appointed guardian?

2. Are you planning to move your father to Florida?

3. Are you your father's Health Care Surrogate?

4. Why did the court not appoint you guardian of your father's estate when you were appointed guardian of his person?
 
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Parimasn

Guest
Thanks BlondiePB

My brother was listed as a dependent on my father's 1040. I'm not sure if that would serve as dependent status in court, but I'm thinking it's a pretty good argument.

My present attorney's fields of expertise include guardianship, estate planning and estate settlement. There's also a member of this firm that specializes in divorce that is in consultation with my lead attorney. I agree with you, there's got to be a way for a guardian to initiate divorce proceedings if it's in the best interest of the ward's estate.

I'll try to answer your questions:

1) My stepmother has never filed for divorce, before or after her appointment. She's got no reason to file. She's living with another man and collecting my Dad's SS and pension checks. Why would she want to get divorced?

2) No. I'm very satisfied with my Dad's nursing home in Illinois. I've been there several times over the past year. It's very clean. It's very new. And the staff, from the admin to the cleaning people are first class. My brother and his wife live close by and make weekly visits and report their findings to me.

3) Yes. As of the 14th of this month, I was appointed guardian of the person of my father.

4) As I mentioned in my first post. My stepmother did an end run on my family with regard to the guardianship. I knew she was having Dad placed in the nursing home. I stayed in touch with her throughout that process. What we weren't aware of was her application and appointment as plenary guardian. I only learned of this when I was in Illinois to attend to my brother's affairs. The nursing home actually first made me aware when they wouldn't discuss details of Dad's medical condition with me, explaining that I wasn't the guardian. The courts screwed up her guardianship appointment big time. But overturning the court ordered guardianship means going to Appelate court and would cost more than I can afford.

My father had a diabetic seizure a couple of weeks ago. The nursing home called my stepmother. They left a message to call with her "boyfriend". She called the nursing home a couple of hours later and told them she'd had an accident and if they had any questions about Dad that they should call "the kids". The nursing home then called me. After I got Dad's situation controlled, I called my attorney. I told him that my stepmother could not or would not perform her court appointed duties and wanted her to resign as guardian. My attorney called her attorney and she resigned as guardian of the person. That's how I received my guardianship of the person appointment. She's hanging onto her status of guardian of the estate pending the divorce settlement. She's willing to resign as guardianship of the estate. All we have to do is give her the entire estate and she'll just go away. Right now that's not acceptable.

Thanks for your help. It's good to hear new ideas.
Danny
 

tigger22472

Senior Member
Parimasn said:
1) My stepmother has never filed for divorce, before or after her appointment. She's got no reason to file. She's living with another man and collecting my Dad's SS and pension checks. Why would she want to get divorced
I tried reading everything and there were other things to comment on but I REALLY want to touch base on this. Is the SS monies that your step-mother receives the portion she receives for HERSELF from your father's SS benefits or are you saying she in fact is getting HIS checks?
 
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Parimasn

Guest
Yes, tigger 22742. His SS check and his pension check from the mine. She's 56 years old. She's too young to collect SS on her own.

She's claiming spousal impoverishment and doesn't even qualify for that.
 

BlondiePB

Senior Member
tigger22472 said:
I tried reading everything and there were other things to comment on but I REALLY want to touch base on this. Is the SS monies that your step-mother receives the portion she receives for HERSELF from your father's SS benefits or are you saying she in fact is getting HIS checks?
tigger,
There is so much wrong with what OP's step mother did when SM became plenary guardian. The guardian of the estate does, indeed, receive the ward's SS and the ward's pension which is what guardian of the estate is supposed to do. What is not clear is whether or not SM is appropriately using her husband's money and whether SM has court authorization to use her husband's money for her own support as she is entitled to as spouse of the ward.

Danny,
I will get back to this in the morning to deal with the info you so graciously provided. There's quite a lot of issues here that I'd rather deal with in the morning.
 

BlondiePB

Senior Member
Danny,

First, I'm going to refer you to FL's statutes about guardianships. Though IL governs your father's guardianship, there is very little differences in the statutes among the states, and FL's statutes are very clear. Read chapter 744 at www.flsenate.gov/statutes and read very closely 744.3215, 744.397, 744.421, and 744.474.

Second, I really believe that you need a different guardian attorney because the one that you have:

1) does not know that the guardian of a person can petition the court on behalf of a ward for a divorce and the Probate Judge decides whether or not the ward can get a divorce and oversees the distribution of the estate,

2) can petition the court to have step mom removed as guardian of the estate via the local Probate court not appellate and with everything she has done inappropriately, there's plenty of ammunion to have her removed - despite her contesting to her removal.

There are other things that your guardian attorney should know and can do things about this entire matter. I recommend either you make some inquiries to other guardian attorneys in IL and ask them about my two examples and hire the one that knows that this can be done or to have your current attorney file a petition to have your mother removed as guardian of the estate citing all her violations and a petition requesting permission for a divorce. Afterall, you are the one who hires and fires an attorney.

Also, a guardian of a person does not automatically entitle the guardian to make health care decisions for the ward. You need your guardian order amended designating you or even your brother since he lives so close as the Health Care Surrogate. Lastly, if your private messages is enabled, check them.
 

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