In re Schmidt

No. 2--97--0757
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

In re CYNTHIA SCHMIDT, Alleged ) Appeal from the Circuit Court
to be a Disabled Adult ) of McHenry County.
)
(William Pilarski, Petitioner- ) No. 97--PR--177
Appellant, v. Thomas Schmidt, )
Respondent and Counter- )
petitioner-Appellee; James )
Kelly and Rehabilitation )
Institute of Chicago, ) Honorable
Respondents). ) Michael J. Sullivan,
) Judge, Presiding.
_________________________________________________________________

JUSTICE RATHJE delivered the opinion of the court:
On May 30, 1997, petitioner, William Pilarski (William), filed
a petition to be appointed guardian of the person of his sister,
Cynthia Schmidt (Cindy), alleged to be a disabled adult. Cindy
was involved in an automobile accident on April 11, 1997, in which
she suffered severe head trauma. The petition alleged that she
was in a comatose state. Respondent, Thomas Schmidt (Tom),
Cindy's husband of three years, filed a counterpetition to be
appointed Cindy's guardian, alleging that Cindy was in a
vegetative state. On June 17, William filed an amended petition
to substitute Cindy's sister, Sheryl Strack (Sheryl), as the
proposed guardian.
After an evidentiary hearing and consideration of the report
of Cindy's guardian ad litem (GAL), Jeannine A. Thoms, on July 8,
1997, the trial court found that Cindy was a disabled person and
found Tom to be qualified to act as guardian. The court appointed
Tom as the plenary guardian of the person and estate of Cindy and
denied William's petition to appoint Sheryl. The court further
ordered that Cindy's family members be notified 72 hours in
advance of any action taken pursuant to the Health Care Surrogate
Act (Surrogate Act) (755 ILCS 40/1 et seq. (West 1996)), which
governs private decision making for withdrawing life-sustaining
treatment on behalf of a patient lacking decisional capacity. The
court ordered that any decision pursuant to the Surrogate Act be
based on current medical evaluations and certification and be in
compliance with the Act. The court ordered that Sheryl be given
reasonable access to Cindy's medical records, but granted her no
authority regarding medical decisions. The court's order also
established a visitation schedule for Tom, Mandy (Cindy's
daughter, Amanda), and Cindy's other relatives.
William timely appeals. He argues that (1) the court erred
in appointing Tom because neither the provisions of the Probate
Act of 1975 (Probate Act) (755 ILCS 5/11a--1 et seq. (West 1996))
nor those of the Surrogate Act create a preference for the
appointment of a spouse as guardian (implicating an evidentiary
burden for the nonspouse to overcome); and (2) the court failed to
make a determination regarding which proposed guardian would most
likely follow the dictates of the the Probate Act (755 ILCS 5/11a-
-3(b), 11a--5 (West 1996)) and the Surrogate Act (755 ILCS
40/20(b)(1) (West 1996)) in caring for Cindy. We disagree, and we
affirm.
At the hearing, Tom testified initially as an adverse witness.
Cindy was then at the Glen Oaks Nursing Home (Glen Oaks) in
Northbrook, and her treating physician was Dr. Velasco. Tom was
acting as her surrogate in making medical decisions. He believed
it was in Cindy's best interest that her medical records remain
confidential, but he allowed his sister-in-law, Toni Schmidt (who
was completing an R.N. degree) to see the records; Toni had been
with Tom since the accident. Tom had previously given do-not-
resuscitate (DNR) orders to the staff at Centegra Hospital, the
Rehabilitation Institute of Chicago (RIC), and Glen Oaks. If
named Cindy's guardian, his goal was to take care of her. This
would include withdrawing nutrition, hydration, and medication
upon the medical advice of two physicians. As surrogate he would
try to make health care decisions in the same way that Cindy would
make them. Based on his prior discussions with Cindy and her
daughter Mandy, Tom stated that Cindy does not wish to be kept
alive by artificial means. She had informed them that, if she
were disabled, she would want Tom and Mandy to care for her, and,
if she were in a vegetative state, she would not want to live that
way; that was not "life." She did not say what she would do if
she were in a vegetative state but was recovering from that state.
Tom agreed that Cindy had a close relationship with her daughter
Mandy, her mother, her sister Sheryl, and her Aunt Kathy.
Tom received training at the RIC regarding Cindy's care. He
acknowledged that he expressed his intention to terminate life
support for Cindy. On June 25, 1997, he had a dispute with
Cindy's family at Glen Oaks regarding Cindy's attire in relation
to the temperature in the room. He was concerned about her
modesty because of the way the interns picked her up and moved her
around, leaving her exposed. Since then, in order to avoid
confrontations, he arranged with Glen Oaks not to have Cindy's
family there when he wished to visit. He denied being estranged
from Cindy. His understanding of Cindy's wishes was that she
would not wish to be placed on a respirator to help her breathe.
However, during the first few days after the accident she was
placed on a respirator; the respirator was later removed. On
redirect-examination, Tom stated that the DNR and other medical
decisions were based on the opinions and recommendations of
Cindy's treating physicians. Tom wanted to have Cindy wear the
everyday attire she had worn at the RIC. He had visited her there
daily.
Cindy's mother, Sally O'Neill, who lives in Arizona, testified
that, based on her discussions with Cindy, she would want everyone
to care for her and continue with the care she was getting. Sally
acknowledged that Cindy would not want to live on life support.
Sally had previously observed Tom get upset with Cindy, and he
would sleep on the couch. He would call her a "dumb blonde" and
became irritated when Cindy did not play cards the way he thought
she should.
Kathleen Marie Lagerman (Kathy), Cindy's aunt who lives in
Arizona, testified that she had a conversation with Tom at
Centegra Hospital in Woodstock on April 14, 1997. In discussing
Cindy's condition, he stated that, if she were not going to be
herself, he would "end it" and disconnect her feeding tubes.
Kathy was a nurse's aide. On July 4, 1997, she told Cindy to
blink her eyes and open them if she knew it was Kathy. Kathy
observed Cindy blink her eyes and open them in response to her
question. In response to a "no" question, Cindy motioned her head
from right to left. Kathy had worked with Cindy in a nursing home
several years before. Cindy said she would never want to live
like the patients who were unable to speak or communicate. Kathy
observed Cindy cry a lot while visiting in Arizona. Tom wanted
Cindy to be with him and to know where she was all the time. He
made "dumb blonde" jokes about her.
Diane Haase, Cindy's sister, testified that she held an LPN.
degree and had practiced nursing until six years before. On
May 29, after a family meeting, Tom stated he felt it necessary to
call the family to inform them of his decision. He did not
believe Cindy's chances were good, and he planned on pulling her
feeding tube and letting her go. On May 30 at the RIC in the
presence of other siblings, he stated that he would let Cindy have
six months or possibly a year as recommended by Dr. Kelly and that
no one should be upset because he wanted what was best for Cindy.
The last time that Diane visited Cindy, she felt Cindy move
her thumb over her fingers. She asked Cindy to close her eyes for
"yes" in response to her asking Cindy whether she knew Diane was
there, and Cindy responded by closing her eyes. She had not been
able to respond that way after the accident. When they worked
together in nursing, Cindy said she would not want to live on a
ventilator, but if she had the opportunity, she would allow
feeding tubes and other types of rehabilitation. If she had a 50%
chance of coming out of a coma, she would want to be given the
opportunity to do so. On cross-examination, Diane stated Cindy
would not want to be unable to communicate with the world and
would not want to continue living in that state.
Stacy Strack, Cindy's sister, visited Cindy after the
accident. She videotaped Cindy on June 29 at Glen Oaks, and the
tape was played before the court to depict Cindy's condition. (The
tape is not part of the record on appeal.)
Sheryl Strack, Cindy's sister and proposed guardian, testified
that she was an activity director at a nursing home in Belvidere.
On April 15, 1997, at the Centegra Hospital in Woodstock, Tom told
her he did not think Cindy would be able to live on the
respirator, and he wanted to take her off the respirator to see if
she survived. At the hospital the following week, Tom made jokes
about the shunt that Cindy had in her brain after she came out of
surgery. Sheryl also testified that Cindy responded to her
questions by closing and opening her eyes. Sheryl wanted to
move Cindy to a rehabilitation hospital. She did not intend to
withhold nutrition, water, and medication in order to allow her to
die. She thought Tom wanted to end her life prematurely and that
he was a controlling person. About five years before, Cindy had
told her that she would not want to live in a vegetative state or
on life support, but she would want to be given a chance if she
was able to communicate in any manner. Sheryl believed Cindy
loved her husband, but Cindy was unhappy about how he treated her.

Dan Martinez, Cindy's brother, testified regarding Tom's irate
behavior toward Cindy when they played cards. Tom told him Cindy
would die in a nursing home, and Tom would have her buried with a
tombstone engraved, "Here lies Cindy Schmidt who died at the
unmerciful hands of her brothers and sisters." Dan acknowledged
that Cindy told him she knew Tom loved her or knew that he cared
for her, "but it was hard."
Tom testified that he and Cindy were married in April 1990.
He had met her two years before that. He considered their
marriage to be happy and successful. They were never separated
nor did they ever seek counseling. During the past year, he and
Cindy had a conversation in which she stated that, if she were
disabled, she would like Tom and her daughter Mandy to take care
of her. She would not want to live in a vegetative state. Cindy
sent Tom many cards and letters. A card she sent to Tom on March
21, 1997, stated, "I don't mistrust you. I trust you with my
life. You are my life." Tom testified that anything he had done
regarding Cindy's care was based on medical opinion and was in her
best interest. Anything done in the future would likewise be
based upon medical opinions and recommendations and based on
Cindy's best interest. Tom had pet names for her, including
"Booba" and "dumb blonde." She would make faces in response to
the names and make light of them. He visited her daily at the RIC
and took many hours of training there to learn how to care for
her. Tom took a leave of absence from his job to care for her
after he used up his vacation and holiday time. His sister-in-law,
Toni, also saw her daily in rehabilitation.
Amanda Kay Hoffman (Mandy), Cindy's daughter, testified that
Cindy and Tom had a happy marriage, that her mother was happy and
trusted Tom. Mandy was 17 years old. She had a close relationship
with her mother. They talked sometimes about the arguments between
Cindy and Tom, but Cindy never indicated she wanted a divorce or
a separation. After a television movie about a car accident,
Cindy stated she never wanted to live on any kind of life support.
If she were ever disabled, Cindy wanted Tom and Mandy to care for
her. Based on the records she had seen, she believed Cindy was
"brain dead." Cindy took the "dumb blonde" phrase as a joke.
Cindy had been married several times. Mandy's relationship with
Tom was "okay," and she intended to remain with Tom at their home.
There were adoption proceedings in progress, and Mandy did not
object to the adoption. Tom spoke to her most of the time
regarding the medical decisions, and Mandy agreed with Tom's
position.
The parties stipulated to the admission of certain medical
records, but no medical testimony was offered. The court
considered the detailed written report of the GAL. The GAL
interviewed Tom and other family members as well as Dr. James
Kelly and caseworkers at the RIC and Dr. Pederson, who was Cindy's
surgeon and attending physician at Centegra prior to her transfer
to RIC. She also reviewed Cindy's medical tests. When
neurosurgery was performed after the accident, Cindy's brain
swelled so severely that the portion of the skull that had been
removed was never replaced. After her transfer to the RIC, Dr.
Kelly advised that Cindy was in a severe vegetative state, and he
did not anticipate recovery from this state--in contrast to Dr.
Pedersen's more optimistic view upon which the siblings had
relied. According to the report of the GAL, Dr. Kelly explained
that, in a vegetative state, a person can have base reflexes, such
as opening the eyes, that distinguish persons in a coma.
Dr. Pedersen explained to the GAL that reflexes such as
yawning, gagging, doll eyes, and response to severe pain could be
base reflexes and not necessarily an indication of improvement.
He related that he told the family that Cindy was going to the RIC
for two weeks and that she may improve, but if at the end of two
weeks there were no changes, this would be a strong indication
that she was not going to have a hopeful recovery. Dr. Pedersen
explained to the GAL the limitations of MRI testing at Centegra,
and he did not understand why the family misinterpreted his
prognosis.
According to the report, Tom and Toni took excellent care of
Cindy. The report also related that Mandy stated Cindy had been
married four times, and this marriage to Tom was by far the best.
The GAL concluded that it would be in Cindy's best interest to
appoint Tom as guardian of her person and estate.
After hearing the arguments of counsel, the court found that
Cindy was in need of a guardian due to her brain injury resulting
from the accident. The court took note of the tension in the
family and the apparent disagreement as to the best course of
action. The court noted that the situation did not involve
strangers, but all close relatives. The court pointed out that,
under the Probate Act, in cases involving decedents' estates there
is a preference for the appointment of spouses and, under the
Surrogate Act, there also exists a preference for spouses. The
court opined that both logic and the law indicated "at least some
preference for the spouse" and further commented, "I don't see
that there has been anything that would overcome that." In
appointing Tom as Cindy's guardian, the court noted that the issue
then before it was the appointment of a suitable person as
guardian. In viewing the videotape, the court was unable to
determine the significance of the eye movement and observed that
medical decisions should best be left to the medical experts and
there would need to be further current and ongoing medical
evaluations.
On appeal, William first argues that the court erred in basing
its decision on a preference for the appointment of a spouse as
guardian because there is no basis for such a preference either
under the Probate Act or the Surrogate Act. In support of his
position, William cites In re Conservatorship of Browne, 54 Ill.
App. 3d 556 (1977).
Section 11a--5 of the Probate Act provides that a person may
be appointed to act as guardian if that person has attained 18
years of age; is a resident of the United States; is not of
unsound mind and is not adjudged a disabled person under the Act;
has not been convicted of a felony; and the court finds that
person capable of providing an active and suitable program of
guardianship for the disabled person. 755 ILCS 5/11a--5 (West
1996). The petition for the adjudication of disability and for
the appointment of a guardian must state inter alia the name and
post office addresses of the nearest relatives of the respondent
in the following order: (1) the spouse and adult children, parents
and adult brothers and sisters, if any; and, if none, (2) the
nearest adult kindred known to the petitioner. 755 ILCS 5/11a--8
(West 1996).
Section 11a--12(d) of the Probate Act provides that the
selection of the guardian shall be in the discretion of the court,
"which shall give due consideration to the preference of the
disabled person as to a guardian, as well as the qualifications of
the proposed guardian." 755 ILCS 11a--12(d) (West 1996).
Although a court is required to consider the disabled person's
preference, it is not bound by that preference. In re Estate of
Bennett, 122 Ill. App. 3d 756, 760 (1984).
No question is raised regarding Cindy's disability and the
need for a guardian. The question here is whether the trial court
abused its discretion in selecting Tom as Cindy's guardian. In re
Estate of Robertson, 144 Ill. App. 3d 701, 712 (1986). An abuse
of discretion occurs where no reasonable person would take the
view adopted by the trial court. In re Marriage of Carpenter, 286
Ill. App. 3d 969, 973 (1997).
The best interest and welfare of the disabled person is the
paramount concern in selecting a guardian. Browne, 54 Ill. App.
3d at 560. Under that standard and under legally prescribed
conditions, a guardian acting as surrogate may exercise the
patient's right to refuse medical treatment including artificial
nutrition and hydration. In re Estate of Greenspan, 137 Ill. 2d 1, 16 (1990); see 755 ILCS 40/20 (West 1996). In appointing a
guardian, a court may consider such factors as past actions and
conduct of the proposed guardians, business experience, ages, and
family situations. Robertson, 144 Ill. App. 3d at 712. Among the
factors to be considered is the degree of relationship between the
disabled person and the proposed guardian, and serious
consideration should be given to any conduct by the disabled
person prior to the adjudication manifesting trust or confidence
in the proposed guardian as well as prior conduct by the proposed
guardian indicating a concern for the well-being of the disabled
person. In re Estate of Vicic, 79 Ill. App. 3d 383, 385 (1979).
In Browne, the reviewing court determined that the trial
court's appointment of the incompetent's attorney as her
conservator was in her best interest where he was the preference
of the relatives and the incompetent had previously manifested her
trust in him in his management of her legal affairs while she was
still competent. The reviewing court declined to adopt the rigid
statutory preferences for awarding letters of administration of a
decedent's estate found in section 9--3 of the Probate Act then in
effect. Ill. Rev. Stat. 1975, ch. 3, par. 9--3 (listing the order
of preference, including the nominees of each class of persons:
surviving spouse, children, legatees, grandchildren, parents,
brothers and sisters, nearest kindred, representative of the
estate of deceased ward, public administrator, creditor of
estate). The current statute contains essentially the same
hierarchy. 755 ILCS 5/9--3 (West 1996).
As a stranger, the attorney would fall below the public
conservator in the hierarchy of persons to be considered if the
statutory preferences were applied. However, based on the quality
of the attorney's previous relationship with the incompetent, the
Browne court nevertheless upheld the attorney's appointment as
consistent with the best interest of the incompetent. The court
stated that the recommendations of persons with kinship or
familial ties are to be considered by a court when selecting a
conservator because "it is presumed that such persons are likely
to be more solicitous of the incompetent's welfare than would be
someone else." Browne, 54 Ill. App. 3d at 559-60; see In re
Estate of Debevec, 195 Ill. App. 3d 891, 898 (1990). However, in
the case before it, the court focused on the closeness of the
personal ties between the incompetent and the proposed conservator
(guardian) as an appropriate factor in selecting the conservator.

In specially concurring with the result but not the rationale
of the decision, Justice Barry opined that, as a matter of public
policy, the preference given to relatives in obtaining and
nominating others for letters of administration should also apply
to obtaining, or nominating others, for the letters of
conservatorship. Browne, 54 Ill. App. 3d at 561 (Barry, J.,
specially concurring).
While the Browne majority rejected the rigid statutory
hierarchy of section 9--3 of the Probate Act as a basis for
appointing a guardian, the court did determine that the closeness
of the ties between the disabled person and the proposed guardian-
-including familial ties--was a factor to be considered. The
court cautioned that, if the evidence established that the
relative seeking a preference had theretofore been relatively
unconcerned about the incompetent, his recommendation should be
accorded much less weight than a relative who had maintained close
personal ties with the incompetent. Browne, 54 Ill. App. 3d at
560.
Browne does not directly address the question before us, where
the appointment of a guardian involves a contest between the
spouse and a sibling of the disabled person. We observe in
passing that a husband has the same relation by affinity to his
wife's blood relatives as she has to them by consanguinity, and
vice versa. See Calloway v. Allstate Insurance Co., 138 Ill.
App. 3d 545, 547-48 (1985); State v. Hooper, 140 Kan. 481, ___, 37 P.2d 52, 64 (1934). We too reject the rigid application of the
statutory preferences presently found in the Probate Act and the
Surrogate Act in appointing a guardian. Nevertheless, we believe
the trial court could properly consider the degree and quality of
the relationship between Cindy and the proposed guardian as one of
several factors in making the appointment. To the extent that the
statutes governing the appointment of a guardian are silent, it
was not error for the court to consider the public policy
expressed in these related Acts in guiding its decision.
According to William, nothing in the Browne decision states
that relatives are preferred in the naming of a guardian, but
rather, that court ruled that the input of relatives in choosing
a guardian should be carefully considered. William further argues
that a majority of Cindy's "close" relatives, including her
mother, aunt, brother, and three sisters, preferred her sister
Sheryl as guardian. By contrast he notes that only Cindy's
husband Tom and her minor daughter Mandy testified in favor of
appointing Tom. William concludes, incorrectly we believe, that
the trial court therefore disregarded the preferences of Cindy's
relatives. Tom and Mandy are relatives. We do not believe that
the roles of the husband and daughter (and their preferences) are
of less consequence merely because a purported majority of Cindy's
other relatives preferred the appointment of Sheryl. As we shall
explain further, the spousal relationship is one that the trial
court could properly consider insofar as it reflects the closeness
of the ties between the disabled person and the proposed guardian.

William next argues that the Surrogate Act does not create a
preference for the appointment of the spouse as guardian. The
Surrogate Act sets forth a hierarchy of persons allowed to make
the decision whether to forgo life-sustaining treatment on behalf
of a person with a statutory qualifying medical condition who
lacks decisional capacity. 755 ILCS 40/25(a) (West 1996). The
Surrogate Act applies only where the disabled person has no agent
previously appointed under the Powers of Attorney for Health Care
Law (755 ILCS 45/4--1 et seq. (West 1996)) or has no operative
living will pursuant to the Illinois Living Will Act (755 ILCS
35/1 et seq. (West 1996)).
Section 25(a) of the Surrogate Act directs that, when a
patient has a qualifying condition and lacks decisional capacity
and no health care agent is authorized and available, the health
care provider must make a reasonable inquiry as to the
availability of possible surrogates, as identified by the
attending physician. The surrogate may make decisions whether to
forgo life-sustaining treatment on behalf of the patient without
judicial involvement. The provider may rely on any of the listed
surrogates if the provider believes after reasonable inquiry that
no health care agent or surrogate of higher priority is available.
755 ILCS 40/25(a) (West 1996).
The order of priority for surrogate decision makers is as
follows: (1) the patient's guardian of the person; (2) the
patient's spouse; (3) any adult son or daughter of the patient;
(4) either parent of the patient; (5) any adult brother or sister
of the patient; (6) any adult grandchild of the patient; (7) a
close friend of the patient; (8) the patient's guardian of the
estate. 755 ILCS 40/25(a) (West 1996). William correctly points
out that Illinois law first prefers a surrogate decision maker or
agent appointed by the disabled person before the disability
occurred. That preference supersedes any other preference for
persons in the hierarchy, including a guardian, spouse, or
sibling.
In the present case, there was no previously designated agent
for health care and no living will known to be extant. Thus, by
operation of law, health care providers could reasonably rely on
the surrogate decision-making authority of Tom as Cindy's spouse,
in the absence of judicial intervention. We emphasize that the
Surrogate Act does not control the appointment of a guardian.
However, it does express the legislature's intent that the nature
of the relationship between the disabled person and the decision
maker be given consideration when the care and best interest of a
disabled person are in question. In view of the statutory
preferences given to spouses in closely related areas of the law,
such as the administration of decedent's estates and surrogate
decision making, we are loath to say that the court erred in
considering Tom's spousal relationship as a factor in making the
appointment. The law accords a preferential status to spouses
over other close relatives under the laws of testacy and
intestacy, for example. This is because the law recognizes the
special and peculiarly intimate nature of the relationship they
share. See In re Estate of Glogovsek, 248 Ill. App. 3d 784, 794-
95 (1993) (in will contest, spousal relationship militated against
presumption of undue influence by testator's wife).
We do not believe the trial court was required to close its
eyes to the public policy of this state regarding spousal
preferences and to the reality of the relationship between husband
and wife. See In re Estate of Greenspan, 137 Ill. 2d 1 (1990)
(supreme court considered public policy expressed in related
statutes in determining whether public guardian could properly
petition court to withdraw nutrition and hydration from
incompetent ward). We hasten to add that this spousal
relationship is only one of several factors that a court may
consider in appointing a guardian. We decline to equate this
spousal preference with a presumption that must be overcome in a
contested guardianship proceeding.
William contends that the trial court failed to make a
determination regarding which proposed guardian would be most
likely to follow the dictates of the Probate Act to promote
Cindy's well-being, protect her from neglect, exploitation or
abuse, and encourage development of her maximum self-reliance and
independence (755 ILCS 5/11--3(b) (West 1996)) and to follow the
Surrogate Act's mandate that the surrogate carry out the disabled
person's wishes (755 ILCS 40/20(b)(1) (West 1996)). The gist of
this argument is that, because Tom expressed a desire to withdraw
life-sustaining treatment in contrast to Sheryl's expressed desire
to attempt to rehabilitate Cindy, his appointment would not be in
Cindy's best interest--the paramount concern in selecting a
guardian. Yet, in his preceding argument regarding spousal
preferences, William stated in his brief that it is undisputed
that both Tom and Sheryl are qualified to act as Cindy's guardian.

The decision to withdraw life-sustaining treatment may very
well be consistent with Cindy's best interest under the
appropriate circumstances. The law clearly permits such a
decision by either the guardian or the surrogate, but only if
certain criteria are met. See Greenspan, 137 Ill. 2d at 16-17;
755 ILCS 40/20 (West 1996) (setting forth the procedures to be
followed in making a decision to forego life-sustaining treatment
without resorting to the courts or legal process). The trial
court pointed out that those circumstances were yet to be
medically certified. See 755 ILCS 40/10 (West 1996) and 755 ILCS
40/20(c) (West 1996) (the attending physician and at least one
other qualified physician must determine that the patient lacks
decisional capacity and has a "qualifying condition" defined as a
"terminal condition," "permanent unconsciousness" or an "incurable
or irreversible condition," before the surrogate decision maker
may consider whether or not to forego life-sustaining treatment);
see also 755 ILCS 40/25 (West 1996) (a qualified party seeking to
challenge the decision of the recognized surrogate decision maker
may initiate guardianship proceedings in accordance with the
Probate Act of 1975). The court considered Cindy's preference in
the appointment of a guardian, namely, Tom, and her preference in
not being kept alive by artificial means if she were in a
vegetative state. Tom and Mandy testified that Cindy wished them
to care for her. Overall, the testimony of the remainder of the
family was that Cindy would not want to live on life support--
particularly if she were unable to communicate. Notwithstanding
the other relatives testimony regarding Tom's sometimes boorish
behavior, Tom presented evidence that Cindy loved him and placed
her trust in him. Sheryl testified that Cindy loved her husband,
although she was unhappy about how he treated her. Cindy's
brother Dan conceded that Cindy told him Tom loved and cared for
her. Tom testified that he would make his decisions within the
dictates of the law. Although the record discloses the apparent
antipathy between Tom and some members of the family, the record
reveals no fraudulent conduct or bad faith in prior dealings
between Tom and Cindy that would disqualify Tom. See Robertson,
144 Ill. App. 3d at 712.
The GAL's report indicated that Tom had taken excellent care
of Cindy, and it sought to explain the parties' perceived
differences in interpreting Cindy's prognosis. Apparently, part
of the confusion stemmed from the fact that, in dealing initially
with the family's questions regarding Cindy's chances of recovery,
Dr. Pederson chose to follow the theory of telling the family what
the best scenario was that could possibly occur under the most
ideal conditions. After outlining the results of a rather
extensive investigation, the GAL recommended Tom's appointment.
The trial court was faced with the difficult decision of
appointing a guardian where a substantial and unfortunate
difference of opinion existed between the opposing factions of
Cindy's family based on their respective interpretations and
perceptions of the facts and circumstances regarding Cindy's care.
We sympathize with all the members of the family in this tragic
situation. Each side appears to want what is best for Cindy in
accord with its respective moral compass, and the evidence does
not show otherwise. We cannot conclude that the trial court
abused its discretion in appointing Tom as the guardian of Cindy's
person and estate.
The judgment of the circuit court of McHenry County is
affirmed.
Affirmed.
GEIGER, P.J., and THOMAS, J., concur.