First District Illinois Appellate Denies Guardian Right To Test Trial Court’s Authority To Temporarily Release Guardianship Power

Glen Dresher appealed from a court’s decision to temporarily release him from co-guardianship of his adult, disabled son. The guardian ad litem for the son moved to dismiss the appeal for lack of appellate jurisdiction. The appellate court agreed with the guardian and dismissed the appeal.

The First District Illinois Appellate Court ruled that there was not a final order from which to appeal. “… [T]he sole issue pending before the court was Glen’s status as guardian, and that status was only temporarily revoked until a final adjudication could be made after a hearing on the citation to remove him.”

In addition, the trial court had ruled, under Illinois Supreme Court Rule 304(a), that there was no just reason to delay enforcement or appeal of its order. That mechanism frequently is used in Illinois to permit an interlocutory appeal of an order that disposes of a claim or a party, but not the entire case. But the appellate court stated that the use of Rule 304(a) language here was improper. “Although the [trial] court stated in one of its orders that there was ‘no just cause or reason to delay enforcement or appeal,’ the addition of that language did not alter the fact that the court’s orders were not final as to any claim or party and were, thus, not subject to Rule 304(a).”

The appellate court also rejected Glen’s appeal under Rule 306(a)(5) (permitting a party to petition for an interlocutory appeal of from order affecting the care and custody of unemancipated minors). There was no dispute that Glen’s son was of adult age.

But Glen argued that his son should be “considered an ‘unemancipated minor’ because ‘prior to the age of 18 years he became disabled and [was] required to be put in a care facility in Wisconsin where he remains to this date.” Glen concluded that his son never became emancipated. Rejecting this argument as “unsupportable,” the appeallate court stated: “At best, Glen’s contentions involve the definition of the term ‘unemancipated’ but ignore the further requirement of Rule 306(a)(5) that the person who is unemancipated also be a minor.

All of this leaves a party who is “temporarily” relieved of guardianship without recourse in the appellate court. That’s an interesting twist in light of Glen’s substantive argument that the Probate Act does not give the trial court authority to order temporary release of guardianship. By this case, there is no way to test the trial court’s authority.

You can read the whole case, In re Guardianship of J.D., 1-06-3069 (9/28/07), by clicking here.

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