                                    Illinois Official Reports

                                           Appellate Court



                             In re Estate of Walker, 2014 IL App (1st) 132565



Appellate Court               In re ESTATE OF MARY LOU WALKER, a Disabled Person (Mary
Caption                       Lou Walker, Petitioner-Appellant, v. Robert F. Harris, Cook County
                              Public Guardian, as Limited Guardian of the Estate and Person of
                              Mary Lou Walker, Respondent-Appellee).



District & No.                First District, Third Division
                              Docket No. 1-13-2565



Filed                         December 3, 2014



Held                          The denial of a petition under section 2-1401 of the Code of Civil
(Note: This syllabus          Procedure seeking to vacate an order adjudicating petitioner as
constitutes no part of the    disabled and appointing a limited guardian for her estate and person
opinion of the court but      was affirmed on appeal, since petitioner failed to present and support
has been prepared by the      with facts the newly discovered evidence she claimed existed that
Reporter of Decisions         would have prevented the trial court from entering the order in the
for the convenience of        underlying proceedings if it had known those facts and she did not
the reader.)                  establish that enforcing the appointment of the limited guardian would
                              be “unfair, unjust, or unconscionable.”




Decision Under                Appeal from the Circuit Court of Cook County, No. 11-P-6051; the
Review                        Hon. Carolyn Quinn, Judge, presiding.



Judgment                      Affirmed.
     Counsel on               Ilia Usharovich, of Wheeling, for appellant.
     Appeal
                              Office of the Cook County Public Defender, of Chicago (Robert F.
                              Harris, Kass A. Plain, Alpa J. Patel, Nathan Goldenson, and Jean M.
                              Agathen, of counsel), for appellee.



     Panel                    JUSTICE MASON delivered the judgment of the court, with opinion.
                              Justices Lavin and Hyman concurred in the judgment and opinion.


                                               OPINION

¶1         Petitioner Mary Lou Walker appeals the trial court’s order denying her petition for relief
       under section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010))
       seeking to vacate an order adjudicating her disabled and appointing a limited guardian of her
       estate and person. Walker claims the trial court’s order must be vacated because she was
       denied effective assistance of counsel during the underlying proceedings where her
       court-appointed counsel also served as her guardian ad litem, creating a per se conflict of
       interest. Walker also claims the lack of independent counsel and procedural deficiencies
       during the guardianship proceedings deprived her of due process. Finally, Walker claims her
       section 2-1401 petition should have been granted to prevent an “unfair, unjust, or
       unconscionable” result because she was not disabled after the order was entered. Finding no
       error in the denial of Walker’s section 2-1401 petition, we affirm.

¶2                                           BACKGROUND
¶3         In September 2011, the North Shore Senior Center located in Northfield, Illinois, contacted
       the public guardian’s office regarding Walker. On October 11, 2011, Dr. Geoffrey Shaw, a
       board-certified geriatric psychiatrist, evaluated Walker at the North Shore Senior Center and
       prepared a written independent medical evaluation. At the time of the evaluation, Walker was
       72 years old. According to the evaluation, Walker’s house was in violation of multiple housing
       codes and plans existed to demolish it. As a result of the housing code violations, Walker could
       not live in her house and was living in her car located in a grocery store parking lot. After her
       car was totaled in an accident, Walker began residing in motels.
¶4         Dr. Shaw identified Walker as suffering from dementia and experiencing deficits in her
       short-term memory with severely impaired executive functioning. Based on his evaluation of
       Walker and his expertise as a board-certified geriatric psychiatrist, it was Dr. Shaw’s opinion
       to a reasonable degree of medical and psychiatric certainty that Walker was “totally incapable
       of making her own personal and financial decisions.” Dr. Shaw noted that Walker did not
       believe she required a guardian. The written evaluation was filed with the trial court on
       October 17, 2011.
¶5         On October 17, 2011, the office of the Cook County public guardian filed a petition for the
       temporary appointment of a guardian of Walker’s estate and person. The public guardian

                                                   -2-
       indicated that Walker, who identified herself as a former practicing attorney, was a 72-year-old
       woman with a diagnosis of dementia. The petition stated Walker’s home was uninhabitable
       and the Village of Northbrook obtained a no-occupancy order and was seeking demolition.1
       The petition also stated Walker had been living in her car with her longtime male companion
       until an accident “totaled” the car. On October 17, 2011, the trial court entered an order
       appointing Kathleen Meersman-Murphy as guardian ad litem for Walker. The order directed
       Meersman-Murphy to: (1) interview Walker; (2) inform her orally and in writing of the
       petition’s contents and of her rights under section 11a-11 of the Illinois Probate Act of 1975
       (755 ILCS 5/11a-11 (West 2010)); (3) elicit Walker’s position regarding guardianship; and (4)
       file a written report.
¶6          Meersman-Murphy made several unsuccessful attempts to contact Walker before seeking
       the assistance of a social worker at North Shore Senior Center. On October 19, 2011, the social
       worker met Meersman-Murphy at the Best Western motel in Morton Grove where Walker had
       been staying. Meersman-Murphy knocked on the door of room 109 and Walker’s male
       companion answered the door and invited her into the room to wait for Walker, who was
       indisposed. The motel room was very cluttered with boxes stacked from floor to ceiling on two
       of the walls and two dogs were also in the room.
¶7          After Walker came out of the bathroom, Meersman-Murphy introduced herself and
       explained the nature of her visit. Walker was properly attired, but she became increasingly
       more agitated as their conversation continued. Meersman-Murphy reviewed with Walker the
       “Statement of Rights and Petitions for Temporary and for Plenary Guardianship” orally and
       provided her with the statutorily required written statement of rights pursuant to section
       11a-11. Walker refused to accept the written statement of rights or copies of the petition and
       threatened to rip them up. Walker acknowledged the hearing scheduled for the following day
       and Meersman-Murphy stressed the importance of her attending that court proceeding. Walker
       repeatedly told Meersman-Murphy she would hire her own lawyer, she did not want a
       court-appointed lawyer and she did not want the office of the public guardian to become her
       guardian. Meersman-Murphy informed Walker of Dr. Shaw’s report and Walker claimed “he
       only asked stupid questions” and denied any difficulty answering his questions.
¶8          On October 20, 2011, the trial court held a hearing on the return of the petition for
       appointment of temporary guardian, and Walker was present at that hearing even though she
       had not yet been formally served with the petition. The trial court continued the matter for
       status on November 28, 2011, and directed Meersman-Murphy to meet with Walker personally
       or with counsel prior to the next hearing.
¶9          On October 24, 2011, Walker was personally served with the summons and a copy of the
       petition for appointment of guardian.
¶ 10        After the court hearing on October 20, Meersman-Murphy attempted to visit Walker again
       on November 27, 2011, following a message she left for Walker on November 25, informing
       her of the importance of her visit. Meersman-Murphy returned to the motel room that day and
       despite hearing noises from inside the room, no one answered the door. Meersman-Murphy left


           1
            The legal proceedings relating to the condemnation and demolition of Walker’s house are not part
       of this appeal, and those proceedings were pending when the trial court entered the order appointing a
       limited guardian of Walker’s estate and person.

                                                     -3-
       a note on the door advising Walker of the need for her to appear in court on the following day,
       and if she failed to appear, the court would likely appoint a guardian of her estate and person.
¶ 11       Meersman-Murphy filed a guardian ad litem report on November 28, 2011. After
       describing her visits with Walker and summarizing Dr. Shaw’s findings, Meersman-Murphy
       stated Walker did not believe she needed a guardian and she did not want court-appointed
       counsel; instead, she planned to hire another attorney.
¶ 12       Walker failed to appear for the November 28, 2011 hearing. Meersman-Murphy again
       informed the trial court that Walker maintained she was going to hire an attorney but had not
       yet retained one. The trial court ordered Walker to appear in court with counsel on December
       12, 2011; the order also provided that if Walker did not have counsel on that date, the trial court
       would appoint an attorney for her. The record reflects that a copy of the court’s November 28,
       2011 order was mailed to Walker on November 29, 2011.
¶ 13       At the next status hearing on December 12, Walker again failed to appear.
       Meersman-Murphy informed the trial court that Walker did not yet have an attorney, but
       Walker was requesting the trial court to appoint an attorney familiar with this area of the law.
       The trial court appointed Meersman-Murphy as Walker’s counsel and continued the case to
       January 19, 2012. The record also reflects that a copy of the court’s December 12, 2011 order
       was mailed to Walker on December 13, 2011.
¶ 14       Walker again failed to appear in court on January 19, 2012. Meersman-Murphy informed
       the trial court that Walker told her not to visit her again and she wanted a different attorney.
       The trial court did not believe it was appropriate to appoint another attorney without Walker
       present in court and specified that when Walker next appeared in court, the court would make it
       clear to her that another attorney would be appointed to represent her. The trial court entered an
       order continuing the matter to February 6, 2012, ordered Walker to appear in court on that date
       and directed that until then, Meersman-Murphy would act as Walker’s counsel. On February 6,
       2012, Walker failed to appear in court. The trial court continued the matter for status on
       February 22, 2012, and set the case for trial on April 24 and 25, 2012.
¶ 15       On February 22, 2012, Walker appeared in court for the status hearing. Meersman-Murphy
       informed the trial court that the public guardian’s office had made a proposed settlement offer
       providing for the appointment of a limited guardian and Walker wanted an opportunity to read
       the offer more carefully. The trial court informed Walker that she had counsel appointed for
       her benefit. Walker reiterated that she did not want a public guardian and stated that she was
       not disabled yet. The trial court also informed Walker that if she did not agree to the proposed
       settlement, trial on the matter was set for late April. Walker asked the trial court, “What if I
       don’t wish to proceed?” The trial court responded that Walker should let counsel know
       because the trial could be rescheduled. Walker asked, “So I would tell her if I did not want to
       have the trial?” and the court responded, “Absolutely.” Walker said nothing during this hearing
       about her desire for the appointment of another lawyer.
¶ 16       On the scheduled trial date of April 24, 2012, Meersman-Murphy informed the trial court
       that the parties had reached a settlement and that Walker had executed the agreed order
       providing for the appointment of a limited guardian of her estate and person. Walker was not
       present in court, and the trial court noted her presence was waived because she executed the
       agreed order. The trial court entered the agreed order appointing the Cook County public
       guardian as the limited guardian of Walker’s estate and person. The court also discharged
       Meersman-Murphy as Walker’s counsel with leave to file a fee petition within 30 days. The

                                                    -4-
       trial court further entered a “Statement of Right to Discharge Guardian or Modify
       Guardianship Order” notifying Walker she had been adjudged a disabled person, a guardian
       had been appointed for her and that she had the right to ask the court for assistance in
       modifying or discharging the guardian if she believed there was a change in her circumstances.
¶ 17        On May 22, 2012, Meersman-Murphy filed a petition for attorney fees totaling $5,676.75
       for services rendered in her roles as guardian ad litem and counsel. In the petition,
       Meersman-Murphy stated she was appointed guardian ad litem on October 17, 2011 and acted
       in that capacity until January 19, 2012. She also stated the trial court appointed her as counsel
       on January 19, 2012 and she remained in that capacity until discharged on April 24, 2012.2
       Meersman-Murphy’s representation in the fee petition that the trial court appointed her as
       counsel on January 19, 2012, appears to be an inadvertent error because the record clearly
       reflects the trial court appointed her as Walker’s counsel on December 12, 2011. Moreover,
       Meersman-Murphy’s invoice for professional services rendered demonstrates she was acting
       as counsel after December 12, 2011 because in an entry dated December 13, 2011,
       Meersman-Murphy sent Walker a letter and the court’s December 12, 2011 order advising
       Walker she was appointed as her counsel, and another entry dated January 5, 2012 related to
       discovery. On June 19, 2012, the trial court entered an order granting attorney fees to
       Meersman-Murphy in the amount of $5,676.25 payable from Walker’s assets for services
       rendered both as guardian ad litem and as counsel for Walker.
¶ 18        More than five months later on December 3, 2012, Walker through new counsel filed a
       section 2-1401 petition seeking to vacate the trial court’s April 24, 2012 agreed order
       appointing a limited guardian of her estate and person. On December 10, 2012, the public
       guardian filed a motion to strike the petition because Walker’s attorney had not filed an
       appearance, the petition was not supported with affidavits and was defective for lack of proper
       service. That same day, Walker filed her response to the motion to strike. On December 10,
       2012, the trial court entered an order striking Walker’s section 2-1401 petition for lack of
       proper service and failure to seek leave of court prior to filing the petition. The trial court also
       granted Walker’s counsel leave to file an appearance for the limited purpose of filing a section
       2-1401 petition.
¶ 19        On December 19, 2012, instead of filing a section 2-1401 petition, Walker filed a petition
       to vacate pursuant to section 2-1301 of the Illinois Code of Civil Procedure (735 ILCS
       5/2-1301 (West 2010)) asserting, in part, that the 30-day limitation for filing that motion was
       tolled because she was under a legal disability from the date of the order adjudicating her
       disabled. On January 25, 2013, the public guardian filed a response in opposition to Walker’s
       petition arguing, in part, that the petition was untimely. On February 21, 2013, the trial court
       denied Walker’s section 2-1301 petition.
¶ 20        On April 4, 2013, Walker filed a second section 2-1401 petition seeking to vacate the April
       24, 2012 agreed order on the grounds that the trial court failed to both provide Walker with
       proper notice of the judgment and follow required statutory procedures relating to the
       disability petition and hearing. The public guardian opposed Walker’s latest petition, asserting
       that no affidavits or any other material outside the record supporting Walker’s claims were

           2
             Although the trial court discharged Meersman-Murphy as counsel on April 24, 2012, the fee
       petition included an entry on April 27, 2012 relating to a letter Meersman-Murphy sent to Walker along
       with a copy of the trial court’s April 24, 2012 order.

                                                     -5-
       attached to the petition, no meritorious defense was stated and Walker failed to diligently
       present her alleged meritorious defense at the time of the original adjudication of disability.
¶ 21        On June 6, 2013, the trial court held a hearing on Walker’s second section 2-1401 petition.
       Both Walker and her attorney were present, as were representatives from the public guardian’s
       office. The trial court noted that attempted service on the public guardian by certified mail was
       not adequate because an individual other than the addressee signed for the mail and there was
       no affidavit of any personal service or service by publication. Despite the defective service, the
       court proceeded to address the merits of Walker’s petition. The trial court found that Walker
       failed to demonstrate a right to relief under section 2-1401. The trial court stated Dr. Shaw’s
       written evaluation supported a finding of disability despite Walker’s claim that she was not
       disabled and further noted Walker’s failure to provide any factual support for her claim that she
       was not disabled. The trial court also stated Walker’s claims regarding the denial of due
       process and ineffective assistance of counsel were not causes of action supporting relief under
       section 2-1401 and Walker was not diligent in presenting any defense to the trial court in the
       underlying action. The trial court continued the matter to allow Walker to supplement the
       petition with a supporting affidavit regarding service.
¶ 22        On July 16, 2013, the trial court held another hearing on Walker’s section 2-1401 petition.
       The public guardian advised that service had been effected. The trial court found that Walker
       failed to present facts demonstrating a meritorious defense, i.e., that she was not disabled or in
       need of a guardian, and in the absence of those facts, there was no reason to believe that a new
       trial would yield a different outcome. Thus, the trial court denied Walker’s section 2-1401
       petition. Walker timely appealed.

¶ 23                                              ANALYSIS
¶ 24       On appeal, Walker contends the trial court erred in denying her section 2-1401 petition on
       the ground that the agreed order adjudicating her disabled and appointing a limited guardian of
       her estate and person was void because she was denied effective assistance of counsel and her
       due process rights were violated. Walker claims she was denied effective assistance of counsel
       because her appointed counsel had a per se conflict of interest by serving both as Walker’s
       guardian ad litem and her appointed counsel. Walker asserts the trial court never discharged
       Meersman-Murphy as guardian ad litem and the per se conflict of interest violated her right to
       counsel resulting in a denial of due process. Walker asserts her due process rights were also
       violated because the trial court denied her counsel even though she requested appointment of
       counsel on December 12, 2011 and January 19, 2012. For these reasons, Walker contends her
       section 2-1401 petition should have been granted.
¶ 25       Section 2-1401 allows a court to vacate a final judgment after more than 30 days. People v.
       Vincent, 226 Ill. 2d 1, 7 (2007) (citing 735 ILCS 5/2-1401 (West 2002)). Relief under section
       2-1401 is provided to a petitioner who proves, by a preponderance of evidence, each of the
       following elements: “(1) the existence of a meritorious defense or claim; (2) due diligence in
       presenting this defense or claim to the circuit court in the original action; and (3) due diligence
       in filing the section 2-1401 petition for relief.” Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21
       (1986). A trial court may dismiss a section 2-1401 petition where, even taking as true its
       allegations, it fails to state either a meritorious defense or diligence in presenting the defense.
       Vincent, 226 Ill. 2d at 8; People v. Pinkonsly, 207 Ill. 2d 555, 565 (2003). For purposes of
       section 2-1401, a meritorious defense involves an error of fact or the existence of a valid

                                                    -6-
       defense that was not presented to the trial court. Airoom, 114 Ill. 2d at 222 (quoting
       Brockmeyer v. Duncan, 18 Ill. 2d 502, 505 (1960)); see Pinkonsly, 207 Ill. 2d at 565 (a
       meritorious defense involves an error of fact, not law). A section 2-1401 petition “requires the
       court to determine whether facts exist that were unknown to the court at the time of trial and
       would have prevented entry of the judgment.” Pinkonsly, 207 Ill. 2d at 566. A meritorious
       defense and due diligence, however, need not be shown where the judgment or order is void.
       Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104 (2002).
¶ 26       In Vincent, the Illinois Supreme Court held that a de novo standard of review applies where
       a trial court enters judgment on the pleadings or dismisses a section 2-1401 petition.
       Vincent, 226 Ill. 2d at 18. Following Vincent, decisions of this court have recognized that
       Vincent addressed a judgment that was being challenged for voidness, but did not involve the
       due diligence, meritorious defense and two-year limitation requirements that apply to other
       actions brought under section 2-1401. Cavalry Portfolio Services v. Rocha, 2012 IL App (1st)
       111690, ¶ 10 (citing Rockford Financial Systems, Inc. v. Borgetti, 403 Ill. App. 3d 321, 326-27
       (2010), and Blazyk v. Daman Express, Inc., 406 Ill. App. 3d 203, 206 (2010)). Those
       subsequent decisions of our court apply a de novo standard in reviewing whether a petitioner
       presented a meritorious defense, an issue of law, and apply the abuse of discretion standard in
       reviewing whether the petitioner complied with due diligence requirements, an issue
       dependent on findings of fact. Id. Under either standard, Walker’s arguments fail.
¶ 27       Before addressing the merits of Walker’s claims, we reject Walker’s contention that the
       underlying judgment was void given that the trial court indisputably possessed both personal
       and subject matter jurisdiction. Walker acknowledges on appeal that she received a summons
       in the underlying proceedings, and the Probate Act confers jurisdiction upon the trial court to
       hear and adjudicate disability and guardianship matters. 755 ILCS 5/11a-3 (West 2010);
       In re Estate of Steinfeld, 158 Ill. 2d 1, 12 (1994). Consequently, because the underlying order
       was not void, Walker must establish a meritorious defense or claim and due diligence in
       presenting the meritorious defense or claim in the underlying proceeding and in bringing the
       section 2-1401 petition. Sarkissian, 201 Ill. 2d at 104-05. Walker failed to prove any of the
       elements necessary to the success of her section 2-1401 petition.
¶ 28       Walker claims she is entitled to relief under section 2-1401 because she was denied
       effective assistance of counsel. Walker frames her argument as an ineffective assistance of
       counsel claim, but we must clarify that the concept of “effective assistance of counsel” is a
       constitutional right afforded to defendants in criminal proceedings. Pinkonsly, 207 Ill. 2d at
       567. In contrast, guardianship proceedings are governed by statutory authority, and the Probate
       Act provides that the trial court may appoint counsel if it finds the respondent’s interests are
       best served by the appointment and counsel shall be appointed upon a respondent’s request.
       755 ILCS 5/11a-10 (West 2010). Thus, the constitutional right to counsel and the right to
       “effective assistance of counsel” that are paramount in criminal proceedings are not applicable
       to the statutory guardianship proceedings presented here. Moreover, the law is well established
       that ineffective assistance claims are not properly raised in section 2-1401 proceedings
       because such claims do not challenge the factual basis for the trial court’s judgment.
       Pinkonsly, 207 Ill. 2d at 567. Although Walker erroneously labels her claims as “ineffective
       assistance of counsel,” she is really arguing that the individual appointed to represent her
       interests during the guardianship proceedings served in a prohibited dual role of guardian



                                                  -7-
       ad litem and counsel creating a per se conflict of interest. Consequently, we must determine if
       Meersman-Murphy simultaneously acted as both guardian ad litem and counsel.
¶ 29       To establish that Meersman-Murphy served in a prohibited dual capacity, Walker relies on
       the seminal case of People v. Austin M., 2012 IL 111194, but such reliance is misplaced. In
       Austin, the trial court did not expressly appoint an attorney as a minor’s guardian ad litem, but
       our supreme court found that defense counsel acted more as a guardian ad litem than as a
       defense attorney. Id. ¶ 104. The Austin court held that “the interests of justice are best served
       by finding a per se conflict when minor’s counsel in a delinquency proceeding simultaneously
       functions as both defense counsel and guardian ad litem.” (Emphasis added.) Id. ¶ 86. The
       court reasoned a per se conflict of interest arises because a guardian ad litem advocates the best
       interests of the minor (which may or may not coincide with the wishes of the minor) and
       presents recommendations to the court consistent with that duty whereas defense counsel’s
       obligations run solely to the minor client. Id. ¶¶ 69, 77, 85, 86. Because the Austin court found
       that counsel labored under a per se conflict, the court reversed the minor’s adjudication and
       remanded the matter for further proceedings. Id. ¶ 106.
¶ 30       Austin is distinguishable because, here, Meersman-Murphy never simultaneously acted as
       Walker’s guardian ad litem and attorney. The record reveals the trial court appointed
       Meersman-Murphy as Walker’s guardian ad litem on October 17, 2011 and as her attorney on
       December 12, 2011. During the November 28, 2011 and December 12, 2011 status hearings,
       Meersman-Murphy introduced herself as Walker’s guardian ad litem. During the January 19,
       2012 status, Meersman-Murphy introduced herself as court-appointed counsel, previously
       guardian ad litem. During the April 24, 2012 status, Meersman-Murphy again introduced
       herself as court-appointed counsel for Walker. In response to the trial court’s question,
       Meersman-Murphy responded “yes” when asked whether she was the original guardian
       ad litem. Contrary to Walker’s claims, Meersman-Murphy’s representations as reflected in the
       transcripts of these proceedings establish she did not simultaneously serve as Walker’s
       guardian ad litem and counsel. The fact that the trial court did not enter a specific order
       terminating Meersman-Murphy’s appointment as guardian ad litem at the time she was
       appointed to act as Walker’s counsel is insufficient to support Walker’s conflict argument
       when the record otherwise reflects that both Meersman-Murphy and the court understood that
       she was acting in two different capacities. Moreover, Walker points to no authority precluding
       an individual from serving as counsel following the termination of the role as guardian
       ad litem. Finally, Walker fails to clearly specify with supporting facts what actions
       Meersman-Murphy allegedly took as guardian ad litem after the trial court appointed her as
       Walker’s counsel.
¶ 31       It is undisputed that Meersman-Murphy initially acted in the capacity of guardian ad litem
       as evidenced by the “report of guardian ad litem” she completed, filed and discussed during the
       November 28, 2011 status hearing. Meersman-Murphy reported that Walker did not believe
       she needed a guardian and stated she did not want court-appointed counsel; instead, she
       planned to hire another attorney. As Walker acknowledges on appeal, Meersman-Murphy did
       not take a position on the necessity of guardianship. But Meersman-Murphy did report her
       observations of Walker, Dr. Shaw’s findings and Walker’s position regarding the
       guardianship. Walker asserts that because an individual serving as a guardian ad litem may be
       required to testify during the hearing regarding any issue presented in the report, Rule 3.7 of
       the Illinois Supreme Court Rules of Professional Conduct (Ill. R. Prof. Conduct (2010) R. 3.7


                                                   -8-
       (eff. Jan. 1, 2010)) is implicated. Rule 3.7 generally precludes a lawyer from acting “as
       advocate at a trial in which the lawyer is likely to be a necessary witness.” Walker reasons that
       Meersman-Murphy, as guardian ad litem and later her counsel could have been called as a
       witness at trial, thus violating Rule 3.7. Here, as the trial court noted, an agreed order was
       entered and there was no trial, which also eliminated the possibility that Meersman-Murphy
       would be required to testify as to matters in the report. Thus, Rule 3.7 was inapplicable and the
       potential conflict identified by Walker was an insufficient basis to support relief from the
       agreed order under section 2-1401.
¶ 32        Walker also claims the trial court erred in denying her section 2-1401 petition because she
       was denied due process during the underlying proceedings. Walker claims her due process
       rights were violated because she was denied her right: (1) to be represented by counsel; (2) to a
       guardian ad litem; and (3) to counsel free from conflict. Walker further claims the trial court
       failed to follow the proper procedures because the trial court: (1) appointed a limited guardian
       without her presence in court; (2) failed to inform her of her rights to seek modification or to
       petition for termination of adjudication of disability; (3) erred in finding clear and convincing
       evidence of her disability; (4) erred in relying on Dr. Shaw’s report; (5) failed to adequately
       inquire into her functioning or extent of impairment; and (6) failed to factually state the reasons
       supporting its appointment of a guardian. Because of these procedural deficits, Walker
       contends the agreed order appointing a limited guardian must be vacated.
¶ 33        Walker’s due process claims do not entitle her to relief under section 2-1401. The record
       reveals that Walker, through Meersman-Murphy, requested the appointment of counsel on
       more than one occasion, but when afforded multiple opportunities to appear in court with
       counsel of her choosing, she failed to do so. Specifically, during the November 28, 2011 and
       January 19, 2012, status hearings when Walker was not present in court, the trial court declined
       to appoint new counsel in Walker’s absence and ordered Walker to appear in court to
       determine if she had retained an attorney or if the court should appoint one for her. When
       Walker appeared in court at the next hearing date on February 22, 2012, she objected to the
       appointment of a public guardian but did not express any dissatisfaction with
       Meersman-Murphy as her attorney or request the court to appoint a different attorney. Thus,
       the trial court acted appropriately to afford Walker the opportunity to retain counsel of her own
       choosing and when Meersman-Murphy informed the court that Walker desired the
       appointment of another attorney, the court was willing to accommodate Walker’s request. On
       this record, when Walker appeared on February 22, 2010, and when Meersman-Murphy
       informed the court that the public guardian had made an offer that Walker wanted to consider
       and Walker did not insist on the appointment of counsel other than Meersman-Murphy, the
       trial court could justifiably assume that Walker no longer desired substitute counsel.
¶ 34        Walker’s other alleged procedural deficiencies relating to the hearing to appoint a guardian
       also do not entitle her to relief under section 2-1401. Regarding her lack of presence in court
       when the trial court appointed the limited guardian, Walker correctly refers to section
       11a-11(a) of the Probate Act, which states in relevant part that “unless excused by the court
       upon a showing that the respondent refuses to be present or will suffer harm if required to
       attend, the respondent shall be present at the hearing.” 755 ILCS 5/11a-11(a) (West 2010).
       During the scheduled April 24, 2012 trial date, Meersman-Murphy presented the trial court
       with an agreed order, which Walker executed, appointing the public guardian as the limited
       guardian of Walker’s estate and person. The trial court acknowledged Walker was not present


                                                    -9-
       during the hearing, but deemed her presence waived because she executed the agreed order and
       therefore, her presence was unnecessary. We agree with the trial court because on the
       scheduled trial date, the trial court merely adopted the agreed order Walker previously
       executed. We note the trial court also informed Walker during the February 22, 2012 status, in
       response to Walker’s inquiry regarding the possibility that she might not want to proceed with
       the trial, that she should inform her counsel if she did not wish to go forward. Therefore, given
       Walker’s execution of the agreed order (which she does not deny), the trial court properly
       entered that order in Walker’s absence.
¶ 35        Moreover, paragraph 11 of the agreed order addressed the required statutory notice
       regarding modification of the appointment order or petition for termination of adjudication of
       disability and directed the trial court’s clerk to mail the notice to Walker. Walker’s signature
       appears immediately below this paragraph giving rise to the reasonable presumption she
       acquiesced to the mailing of the required notice in light of her absence at the hearing.
       Regardless of the method of delivery of the notice to Walker, she was informed about her
       rights to seek modification of guardianship or termination of the adjudication of disability.
¶ 36        Walker further asserts the trial court erred procedurally when it failed to enter an order
       listing its factual findings supporting guardianship. Although the trial court did not separately
       enter such an order, the trial court stated the basis for its findings during the April 24, 2012
       hearing and the agreed order listed the reasons why the court found clear and convincing
       evidence that Walker was disabled and required appointment of a limited guardian of her estate
       and person. The court’s findings were based in part on Dr. Shaw’s report. Walker articulates no
       compelling reason why the trial court should not have relied on Dr. Shaw’s report. The report
       was based on Dr. Shaw’s evaluation of Walker and his expertise as a board certified geriatric
       psychiatrist. Section 11a-2 of the Illinois Probate Act (755 ILCS 5/11a-2 (West 2010)) defines
       a “disabled person” as “a person 18 years or older who (a) because of mental deterioration or
       physical incapacity is not fully able to manage [her] person or estate.” Under section 11a-3(a)
       of the Illinois Probate Act (755 ILCS 5/11a-3(a) (West 2010)), “the court may adjudge a
       person to be a disabled person, but only if it has been demonstrated by clear and convincing
       evidence that the person is a disabled person as defined in Section 11a-2.” Upon an
       adjudication that a person is disabled, the trial court may appoint a guardian of his person and
       of his estate. Id. Dr. Shaw’s report supported the trial court’s finding that Walker was a
       “disabled person” based on clear and convincing evidence and upon that finding, the trial court
       had the power to appoint a guardian of her person and estate. Walker gives us no reason to find
       that Dr. Shaw’s report was not credible or reliable. Because we find no procedural errors
       denying Walker due process, we must reject Walker’s claim that those procedural errors
       entitled her to relief under section 2-1401. Even if we were to assume procedural deficiencies
       relating to the disability proceedings existed, those requirements are procedural, not
       jurisdictional and the guardianship order was still a valid order. In re Estate of Steinfeld, 158
       Ill. 2d at 16.
¶ 37        Lastly, Walker argues the trial court should have invoked its equitable powers to prevent
       enforcement of the order appointing the limited guardian, the enforcement of which would be
       “unfair, unjust and unconscionable.” Given our finding that all of the claims Walker raised as a
       basis for relief under section 2-1401 lack merit, there equally is no basis to vacate the agreed
       order on general equity principles.



                                                  - 10 -
¶ 38       In sum, Walker failed to clearly set forth and support with facts what the newly discovered
       evidence is that would have prevented the trial court from entering the order in the underlying
       proceeding had it known those facts. See Blutcher v. EHS Trinity Hospital, 321 Ill. App. 3d
       131, 135-36 (2001) (noting that the purpose underlying a section 2-1401 petition is to allow the
       petitioner to raise in the trial court facts that are absent from the record, but, if the facts had
       been known, the trial court would not have entered the judgment that it did in the underlying
       proceedings). Walker has not established that enforcing the appointment of the limited
       guardian of her estate and person would be “unfair, unjust, or unconscionable.” Consequently,
       Walker failed to meet the requirements for relief under section 2-1401 and the trial court did
       not err in denying her petition.

¶ 39                                          CONCLUSION
¶ 40       For the reasons stated, the trial court’s ruling denying Walker’s section 2-1401 petition is
       affirmed.

¶ 41      Affirmed.




                                                   - 11 -
