Illinois Appellate Court Finds That Non-Guardian Spouse Has No Standing to Oppose Authorization by the Ward to File For Divorce

In an Illinois Appellate Court decision of first impression, it was found that a non-guardian spouse cannot challenge a guardian’s petition to seek an order to bring dissolution of marriage action on behalf of the ward in the probate court. Previously in the Illinois Supreme Court case of Karbin v. Karbin, 2012 IL 112815, the high court held that a guardian may seek court permission to bring a marriage dissolution action on behalf of a ward and overruled a contrary rule previously established. The Karbin decision was later codified as an amendment to the Probate Act, by amending 755 ILCS 5/11a-17(e).

The Karbin opinion and the Act set out certain procedural and substantive safeguards to protect the ward. Among those safeguards is the requirement that a circuit court considering a petition to file for dissolution of marriage hold a hearing to determine whether dissolution is in ward’s best interest. This case was one of first impression because it was a non-guardian spouse who attempted to challenge whether it was in the best interest of the ward to file a complaint for dissolution of marriage. The issue was whether the non-guardian spouse has standing in the “best interests of the ward” hearing.

George F. Warga, the ward, was 91 years old. When his first wife became ill, he hired a nurse, Laima Bacanskas, to help with her care. His first wife died in 2000. Warga continued to retain Bacanskas to help with household duties. In 2006, the two married. They had no children.

In October 2012, his niece filed a petition for appointment of guardian for a disabled person nominating Joseph Warga, George’s brother, to be the guardian of the person. Bacanskas was named in the petition as an interested person, but she did not challenge the petition at that time. George was alleged to be disabled due to dementia and depression. The court appointed Joseph as temporary guardian pending further proceedings.

On Dec. 14, 2012, Bacanskas filed a cross-petition for appointment of guardian for a disabled person and nominated her son by a previous relationship to be the guardian of Warga’s person and estate. The court denied her petition and granted the other petition and appointed Joseph as the plenary guardian of George’s person and the Northern Trust Co. as plenary guardian of George’s estate.

George was living at an assisted living facility since April 2012. On Feb. 4, 2014, Bacanskas filed a motion for visitation with her husband. She claimed that they used to have periodic visits, but after her annual trip to Lithuania from June 2013 to August 2013, he said he no longer wished to see her. The court denied her motion for visitation. On Nov. 21, 2014, he came to the court and told the judge that he would like to disassociate himself from Bacanskas and wanted her out of his life. He claimed that she was using his money to support her son, Tomas.

On Feb. 11, 2015, through an appointed counsel, Warga filed a motion to authorize the hiring of a divorce lawyer to pursue dissolution of marriage on his behalf. Joseph, the guardian of the person and estate of George, joined in the motion. The court held a preliminary hearing on Feb. 20, 2015 to determine the parameters of the best interests hearing as to whether George could initiate dissolution or marriage proceedings. Bacanskas was allowed to participate during the preliminary hearing, but the court ultimately determined that the only parties with standing to participate in the final best interests hearing would be: (1) George’s guardian ad litem; (2) Joseph, as guardian of George’s person; (3) Northern Trust, as guardian of George’s estate; and (4) George’s attorney.

The best interests hearing was held on Feb. 25, 2015 at which time Bacanskas’s counsel appeared and presented a motion to reconsider the earlier order barring her from participating and a motion for substitution of judge for cause. The court denied the motions based on lack of standing. At the best interests hearing, Joseph testified that he visited his brother several times a week and that George brought up the topic of divorcing Bacanskas almost every visit. According to Joseph, divorcing her was very important to George. After hearing evidence, the court determined that the witnesses were credible and the court found “by clear and convincing evidence that it would be in the best interest of George Frank Warga to have an attorney appointed for him to go to the marital dissolution court.” Two days later George filed a petition for dissolution of marriage against Bacanskas.

On appeal, she raised a number of issues, but chiefly contended that the trial court was wrong by holding that she did not have standing to participate in the best interests hearing. In the First District Appellate Court’s decision, it stated that both Karbin and Section 11a-17(a-5) direct trial courts to conduct a best interests hearing to determine whether a ward should be allowed to file a petition for dissolution, neither authority indicates anything regarding whether the ward’s spouse has standing to participate in the best interests hearing. Rather, they focus on the guardian, stating the guardian is only required to take into account among a variety of other factors, “the views of family and friends” in determining the ward’s best interests. The court also said that while there are other reasons why Bacanskas had no standing to oppose the authorization, in any divorce proceeding involving two competent spouses, one spouse cannot contest the other’s mere filing of the case through counsel. It would thus be wholly illogical to permit it in this instance.

The Karbin case stands for the proposition that it was only the guardian alone who has the power to participate in the best interest hearing. There is nothing in the court’s opinion in Karbin that alludes to allowing the non-guardian spouse to challenge the guardian’s decision. In fact, the Karbin court found that the guardian’s decision to institute a dissolution action on behalf of the ward is no different than the many other personal decisions the guardian makes.

Like any other spouse, Bacanskas may challenge the grounds for dissolution of marriage in the divorce court. However, she contends this is an inadequate remedy, arguing that by “allowing the probate court’s order to stand, under Illinois’ no-fault divorce procedures, [we] will [e]nsure that the marriage between Laima Warga and George Warga will be terminated.” The court found that this was both irrelevant and incorrect.

The Illinois Appellate Court decided that her lack of standing was affirmed, including denying her motion for substitution of judge and appointing independent counsel for George. For these reasons, the court affirmed the court’s orders. This appeal was successfully handled by Monahan Law Group attorney John Whitcomb.

George F. Warga, a disabled person, v. Laima Warga, 2015 IL App (1st) 151182 (Dec. 4, 2015).

Kreisman Law Offices has been handling civil litigation matters, catastrophic injury cases, probate litigation matters, real estate litigation matters and nursing home abuse cases for individuals, families and businesses for more than 40 years, in and around Chicago, Cook County and its surrounding areas including, Hinsdale, Wheaton, Highland Park, Highwood, Homewood, Chicago (Garfield Park, Rogers Park, Lawndale, Bucktown, Kenwood, Hyde Park, Chinatown), Inverness, Arlington Heights and Long Grove, Ill.

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