The population of the United States is getting older. The most recent census, conducted in 2010,revealed not only that there are now more Americans age 65 and above than at any other time in U.S. history, but also that this age group grew at a faster pace during the prior decade than the total population. Moreover, the 65-and-older set is expected to increase even more rapidly over the next decade as more baby boomers start to turn 65 and as new medical advances continue to extend life expectancy.
As the age of the population increases, so, too, does the likelihood that more people will experience competency issues, which may necessitate a guardianship during their later years. Article 11a of the Illinois Probate Act provides for the appointment of a guardian for a “disabled person,” defined as anyone over the age of 18 “not fully able to manage his person or estate” because of “mental deterioration,” “physical incapacity,” “mental illness,” or “developmental disability.” The guardian – most often a friend or family member – must always act in a ward’s “best interests” and work to “promote the well-being of the disabled person, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence.”
Although a guardian has authority to make all types of innately personal decisions on behalf of his or her ward, until recently, a guardian was unable to file a petition on behalf of an incompetent ward for the dissolution of his or her marriage, even where the guardian believed such action to be in the ward’s best interests as a protection from physical or emotional abuse, financial exploitation and/or neglect by the ward’s competent spouse. This changed, however, with the Illinois Supreme Court’s decision in Karbin v. Karbin, 2012 IL 112815, which overruled the court’s prior ruling in In re Marriage of Drews, 115 Ill. 2d 201 (1986), which held that a plenary guardian lacks standing to institute dissolution proceedings on behalf of a ward.
The instances are few and far between when this State’s highest tribunal departs from its well-settled precedent to reverse course and forge a path in a new direction. In Karbin, the court believed that the doctrine of stare decisis – which calls for courts not to disturb settled points – was not compelling, acknowledging that its own case law on this issue had been inconsistent.
Jan and Marcia Karbin were married in 1984. After a car accident in 1997, Marcia suffered brain damage and became totally disabled. For the next seven years, Jan was Marcia’s guardian. However, by 2004, Jan had Parkinson’s disease, and he could no longer care for Marcia. Jan transferred his plenary guardianship of Marcia to her daughter Kara in Ohio. In 2007, after living apart for nearly three years, Jan petitioned for dissolution, alleging non-cohabitation and irreconcilable differences. In 2008, Marcia, through Kara, filed a verified counterpetition, alleging the same bases as Jan.
After the parties had engaged in litigation for nearly 19 months, the trial court granted Jan’s motion to voluntarily dismiss his dissolution petition. Jan thereafter moved to dismiss Marcia’s counterpetition. The trial court agreed, holding that under Drews, Kara had no authority to pursue a dissolution proceeding on Marcia’s behalf. A majority of the appellate court affirmed.
The Illinois Supreme Court reversed the rulings of the lower courts and remanded this cause to the trial court for further proceedings. The court acknowledged that although Drews narrowly construed provisions of the Probate Act to deny standing to a guardian to bring a dissolution action on behalf of a ward because that action is “personal” in nature, it soon thereafter abandoned Drews’ strict construction without offering an explanation. The court observed that in In re Estate of Longeway,133 Ill. 2d 33 (1989) and In re Estate of Greenspan, 137 Ill. 2d 1 (1990), it read the identical provisions of the Probate Act expansively to contain “implied powers” authorizing a plenary guardian to decide on behalf of the ward to end life-sustaining measures. It then adopted this same broad construction in In re Marriage of Burgess, 189 Ill. 2d 270 (2000), concluding that a guardian’s authority to continue an already-filed dissolution action on behalf of a ward “may be implied” from these same provisions.
After tracing its own inconsistent interpretation of the Probate Act, the court in Karbin found additional grounds for reversal of Drews. It noted that the policy foundation for the traditional rule espoused in Drews reflected the view that marriage is sacred – on both religious and moral grounds – and that only the most serious offenses should be allowed to dissolve the marital bonds. The court further observed that this view was intertwined with the belief that the decision to divorce involved a deeply personal choice, and that where one spouse’s incompetence prevented making such a choice, no other person could exercise that option on his or her behalf.
The Karbin decision held that the principles which animated Drews are no longer consistent with current Illinois policy on divorce, as reflected in the enactment of no-fault divorce provisions in 1984. Further, the court emphasized that continued application of the traditional rule results in inequity to disabled spouses. Although a competent spouse could file for divorce against an incompetent spouse at any time, an incompetent spouse was barred from filing a similar action, trapping that person in the marriage with no recourse and potentially endangering him or her in cases of abuse or neglect by the other spouse.
Thus, the Illinois Supreme Court’s decision in Karbin brings Illinois law in line with a growing number of States that hold that a guardian may file a petition on behalf of his or her ward to seek to dissolve the ward’s marriage. Once the petition has been filed, in order for the dissolution action to proceed, the trial court must thereafter hold a hearing during which the guardian has the burden to prove by clear and convincing evidence that such an action is in the ward’s best interests.