                                                                        Digitally signed by
                                                                        Reporter of Decisions
                        Illinois Official Reports                       Reason: I attest to the
                                                                        accuracy and integrity
                                                                        of this document
                                                                        Date: 2017.10.26
                               Appellate Court                          11:16:56 -05'00'




                  In re Estate of Beetler, 2017 IL App (3d) 160248



Appellate Court    In re ESTATE OF DEBORAH BEETLER, an Alleged Disabled
Caption            Person (David E. Beetler, Petitioner-Appellant, v. Tricia Bledsoe,
                   Respondent-Appellee).



District & No.     Third District
                   Docket No. 3-16-0248



Filed              August 29, 2017



Decision Under     Appeal from the Circuit Court of Knox County, No. 13-P-187; the
Review             Hon. Raymond A. Cavanaugh, Judge, presiding.



Judgment           Order reversed and remanded.


Counsel on         Daniel G. O’Day, of Cusack, Gilfillan & O’Day, LLC, of Peoria, for
Appeal             appellant.

                   Chad M. Long and John W. Robertson, of Statham & Long, LLC, of
                   Galesburg, for appellee.



Panel              JUSTICE WRIGHT delivered the judgment of the court, with opinion.
                   Justice Lytton concurred in the judgment and opinion.
                   Justice Schmidt specially concurred, with opinion.
                                              OPINION

¶1       In 2013, Deborah Beetler executed a power of attorney authorizing her husband, David E.
     Beetler, to make her health care decisions. In 2014, the trial court appointed another person to
     serve as plenary guardian over Deborah’s estate and also authorized the guardian to remove
     Deborah’s person from David’s care and place her in a residential facility. In 2016, David
     requested the court’s permission for David to make arrangements to reline Deborah’s dentures
     contrary to the wishes of the court-appointed guardian. The court denied David’s request after
     finding the guardianship implicitly terminated David’s authority to make any health care
     decisions for his wife after the plenary guardianship was established in 2014. We reverse.

¶2                                           FACTS
¶3       On August 29, 2013, Deborah executed an Illinois statutory short form power of attorney
     for health care giving her husband, David, permission to act as her attorney for purposes of
     making her health care decisions. The document authorized David to make any and all
     decisions for Deborah concerning her “personal care, medical treatment, hospitalization and
     health care.” This document became effective upon its execution on August 29, 2013, and
     remains effective until Deborah’s death. However, Deborah did not execute a power of
     attorney designating someone to handle her estate or financial affairs.

¶4                                A. 2014 Guardianship Proceedings
¶5       On October 28, 2013, Barbara Foster, a caseworker for Alternatives for Older Adults,
     petitioned the court to appoint a guardian over the person and estate of Deborah, a disabled
     person. According to the petition, Deborah was 64 years old in 2013 and suffered from
     dementia, resulting in her status as a disabled adult.
¶6       Foster’s petition for temporary guardianship requested that the court enter an order
     appointing Deborah’s daughter, Tricia Bledsoe, to serve as temporary guardian of Deborah’s
     person and estate, pending a full hearing on the allegations contained in the petition for plenary
     guardianship. The petition for temporary guardianship alleged Deborah’s current caretaker
     was neglecting and physically abusing Deborah.
¶7       The petition for plenary guardianship, filed on the same date, requested the court to
     designate Bledsoe as the plenary guardian of Deborah’s person and estate. Neither petition
     advised the court that Deborah had executed a power of attorney for health care naming David
     as her agent. Foster’s attorney filed a proof of service, certifying that David and Deborah’s two
     children were served with copies of the petitions for temporary and plenary guardianship and a
     notice of hearing by mail on October 28, 2013.
¶8       On October 28, 2013, the court entered an order appointing Bledsoe as temporary guardian
     of Deborah’s person and estate. The court order dated October 28, 2013, specified that “the
     authority of the Temporary Guardian under this Order shall supersede all agencies executed on
     behalf of Deborah pursuant to the Illinois Power of Attorney Act.” The court also appointed a
     guardian ad litem for Deborah. On October 28, 2013, Deborah was removed from her home
     and placed in a residential care facility. To date, she has remained in the residential care
     facility.



                                                 -2-
¶9         On February 25, 2014, David filed an answer to Foster’s petition and counterpetition
       requesting the court to appoint David as Deborah’s plenary guardian for both her person and
       estate. On April 3, 2014, the trial court conducted an evidentiary hearing concerning Foster’s
       petition for plenary guardianship and David’s counterpetition. During the evidentiary hearing
       conducted on April 3, 2014, Judge Standard received testimony from approximately 14
       witnesses, including Foster, Bledsoe, David, and various relatives and health care
       professionals.
¶ 10       During the 2014 hearing, Foster explained to the court that, in August 2013, she
       investigated reports that Deborah had been wandering away from her home on multiple
       occasions due to inadequate supervision. As part of her investigation, Foster visited Deborah
       and David’s home on multiple occasions. On the first visit, a woman named Pat Turner, a
       family friend, was present outside Deborah’s home. Turner spoke to Foster and told Foster she
       could not speak with Deborah at that time because Deborah suffers from dementia. Foster then
       approached the front door, knocked, and spoke to Deborah. During this brief conversation,
       Foster observed Deborah had fresh blood on her forehead and clothing. Shortly thereafter,
       Turner and her husband both directed Foster to leave the premises and instructed Foster to
       contact David for information about Deborah’s well-being. Foster complied with their request.
¶ 11       A few days later, Foster returned to Deborah’s home and spoke face-to-face with David.
       David advised Foster that while he was away from the home, a person named Jim Clayton
       provided supervision for Deborah. The record reveals David is employed during the weekdays
       and must be away from the household. During David’s work hours, David believed Clayton
       was supervising Deborah’s activities.
¶ 12       According to David, Clayton lived in the basement of the Beetler home. During Foster’s
       visit, David allowed Foster to speak with Deborah. Foster attempted to evaluate Deborah for
       competency. Foster described David as polite but very guarded.
¶ 13       Foster returned to the Beetler home on another occasion in late August 2013. A woman
       named Connie Turner, a relative, was present at this time and answered the door. While Foster
       was seated on the couch having a “very cordial” conversation with Deborah, Deborah
       unexpectedly became agitated and “attacked” Foster. Foster left the residence shortly
       thereafter to diffuse the situation.
¶ 14       During the 2014 evidentiary hearing, the court received testimony from over 10 witnesses,
       including friends, family, and Deborah’s caregivers. For example, Kim Norville testified she
       was a family friend and witnessed David and Deborah engaged in a physical confrontation as
       the couple was travelling down the roadway in their vehicle. According to Norville, David
       seemed to be yelling at his wife and beating on the steering wheel as he drove. The court
       received testimony about David’s care plan for his wife, which involved volunteer caregivers
       that had a prior relationship with Deborah through connections with her church, neighborhood,
       and family. This network of volunteers spent time supervising Deborah when David found it
       necessary to be away from his wife due to work or other commitments. The court also received
       information from current and past caregivers describing Deborah’s mental state and combative
       nature at times. The court received undisputed testimony indicating David has a calming effect
       on Deborah, causing her to be less agitated in his presence at times.
¶ 15       The court also received testimony from both Bledsoe and David in support of their separate
       requests to be named as Deborah’s guardian. Bledsoe advised the court of the need for
       residential placement due to Deborah’s advanced dementia but conceded her mother trusted

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       David. David expressed concerns about the inadequate care he perceived Deborah was
       currently receiving from the residential care facility, his desire to maintain her dignity, and his
       hopes of avoiding further decline of her mental focus by improving her quality of life.
¶ 16       After the extensive evidentiary hearing in 2014, Judge Standard found that Deborah lacked
       the capacity to make decisions concerning the care of her person and the management of her
       finances due to her dementia. The court also found that placement in a secure facility under 24
       hour supervision, as recommended in a physician’s report, was in Deborah’s best interests. The
       court judiciously noted the difference in expressed perspectives of David, a devoted spouse,
       and Bledsoe, a devoted daughter. The trial court’s finding did not contain an express or implied
       conclusion that either David or Bledsoe had been abusive towards Deborah in the past. The
       court’s findings addressed the “tragic situation” resulting from the progression of Deborah’s
       disease and commented on the “anguish” resulting from Deborah’s circumstances. After
       making certain findings of fact, the trial court entered an order on April 22, 2014, selecting
       Bledsoe as the person to serve as the plenary guardian for Deborah’s person and estate.
¶ 17       The court’s announced findings and written order dated April 22, 2014, were silent and did
       not explicitly address the prior agency created by Deborah pursuant to the Illinois Power of
       Attorney Act (Power of Attorney Act) (755 ILCS 45/1-1 et seq. (West 2016)). The court order
       granted Bledsoe “the power and authority to place the Ward in a residential facility,” a decision
       David hoped to avoid with an alternative plan for home health care. The trial court found
       David’s plan to be unrealistic in light of the medical testimony the court received. Before
       ending the proceeding, the trial court provided compassionate guidance urging the family that
       was divided on the issue of residential care to try to get beyond their differences and “stand at
       [Deborah’s] bedside side by side.”
¶ 18       The April 22, 2014, court order dictated that “Letters of Guardianship shall issue in
       accordance with the provisions of this Order.” On April 22, 2014, the deputy circuit clerk
       issued letters of guardianship. The letters state, in relevant part, that Bledsoe, as the plenary
       guardian, shall have the powers “[t]o arrange for and consent to any and all medical and/or
       dental tests and/or examinations which are reasonably required for the ward” and “[t]o consent
       to medical and/or dental treatment on behalf of the ward; including surgery, as is reasonably
       required for the ward, except where contrary to law.” The letters were not signed by a judge.

¶ 19                                  B. 2016 Health Care Request
¶ 20       On February 12, 2016, nearly two years after Judge Standard appointed Bledsoe to act as
       her mother’s plenary guardian, David filed a motion in the circuit court seeking an order
       allowing him to arrange for certain dental services pursuant to his authority as Deborah’s
       power of attorney for health care. The matter was assigned to Judge Cavanaugh.
¶ 21       On March 1, 2016, David filed an amended motion to correct a pagination error. In the
       amended motion, David stated he desired for his wife to have her denture relined because
       Deborah was “having difficulty eating because of the placement of her teeth, gums, and
       denture.” The amended motion informed the trial court that Deborah’s plenary guardian,
       Bledsoe, opposed the dental procedural David felt was necessary for his wife’s well-being.
¶ 22       David attached an affidavit to the amended motion to allow dental services from Dr. Adam
       Welty, DMD, in support of the proposed dental procedure. In the affidavit, Dr. Welty stated
       that he visited Deborah at the nursing facility and examined Deborah’s maxillary denture. Dr.
       Welty determined the denture was loose fitting and provided no retention. Dr. Welty stated that

                                                    -4-
       in his experience, most patients in long-term care facilities lose weight and their dentures no
       longer fit due to loss of tone, muscle, and fatty tissue in their mouths. Dr. Welty recommended
       that Deborah receive a reline procedure, which essentially refits the existing denture. Dr.
       Welty stated that the procedure does not always ensure retention and denture adhesive may
       still be necessary. However, Dr. Welty opined that in Deborah’s case, a reline would
       dramatically improve the fit of Deborah’s upper denture. Finally, Dr. Welty stated that his
       observations and opinions were based on his education and experience and his opinions were
       made to a reasonable degree of dental certainty.
¶ 23        On February 22, 2016, Bledsoe filed a response to the motion to allow dental services. In
       the response, Bledsoe argued that the proposed denture reline procedure would not be in
       Deborah’s best interest due to her progression into end-stage dementia that resulted in her
       current hospice care. Further, Bledsoe alleged solid food creates a choking hazard for Deborah.
       Thus, according to Bledsoe’s response, Deborah did not require a denture for consumption
       because she was on a pureed diet. Bledsoe’s response indicates Bledsoe did not agree that
       Deborah had difficulty eating on the pureed diet. Bledsoe stated Deborah was unable to follow
       instructions or to report pain that could develop with a possible denture reline due to Deborah’s
       nonverbal status as an end-stage dementia patient.
¶ 24        On April 8, 2016, Judge Cavanaugh conducted an evidentiary hearing on David’s amended
       motion to allow dental services for his wife. The court heard testimony from Dr. Welty on
       behalf of David concerning the proposed denture reline procedure and the benefits it would
       provide to Deborah. Marcy Olmsted, R.N., Deborah’s case manager at hospice, testified the
       proposed procedure would have a negative impact on Deborah. David and Bledsoe provided
       their own testimony to the trial court.
¶ 25        After hearing all of the evidence and the arguments of the attorneys, the court found the
       denture reline might provide cosmetic benefits for Deborah but would not be in Deborah’s best
       medical interests. Further, the court order dated April 8, 2016, found, as a matter of law:
                    “That the Court’s Order dated April 22, 2014, appointing Tricia Bledsoe as
               Guardian of the Person and Estate of Deborah Beetler, obviates and supersedes any
               Illinois Power of Attorney for Health Care executed by Deborah Beetler.”
¶ 26        On May 5, 2016, David filed a timely notice of appeal challenging the trial court’s denial
       of his amended motion to allow dental services filed pursuant to his authority as Deborah’s
       power of attorney for health care.

¶ 27                                             ANALYSIS
¶ 28       In this appeal, David argues Deborah’s 2013 decision to designate David as her agent for
       purposes of making her health care decisions was not extinguished by the 2014 order
       appointing Bledsoe as plenary guardian of Deborah’s person and estate. Bledsoe submits the
       2014 guardianship implicitly revoked David’s authority to make any health care decisions for
       Deborah after the court found Deborah to be a disabled adult and appointed a guardian on her
       behalf.
¶ 29       Before Foster filed a petition under section 11a-3 of the Probate Act of 1975 (Probate Act)
       (755 ILCS 5/11a-3 (West 2012)), Deborah made her own arrangements by selecting David as
       the person she trusted to make her future health care decisions, if necessary. To date, no person
       has filed a petition in the circuit court pursuant to section 2-10 of the Power of Attorney Act


                                                   -5-
       (755 ILCS 45/2-10 (West 2016)) seeking to set aside or requesting a judicial determination
       that David’s agency should be terminated.
¶ 30        Hence, in this appeal, we focus on a very narrow issue. Namely, this court must determine
       whether Deborah’s 2013 decision to designate David as her agent for purposes of making her
       health care decisions under the Power of Attorney Act survives the subsequent 2014 judicial
       decision appointing Bledsoe as the plenary guardian. The issue in this appeal involves a
       question of law subject to de novo review. See In re Estate of Wilson, 238 Ill. 2d 519, 552
       (2010) (“Statutory construction presents a question of law which we review de novo.”).
¶ 31        With great foresight, our lawmakers provided statutory guidance for courts facing the
       precise issue presented in this appeal involving the interface between the Power of Attorney
       Act (755 ILCS 45/1-1 et seq. (West 2016)) and a guardianship proceeding for a disabled adult
       pursuant to the Probate Act (755 ILCS 5/1-1 et seq. (West 2016)). It is clear that David’s
       authority to make any health care decisions for his wife arises solely out of an agency
       relationship created by his wife under the Power of Attorney Act in 2013.
¶ 32        The Power of Attorney Act provides that an individual, such as Deborah, “has the right to
       appoint an agent to make property, financial, personal, and health care decisions for the
       individual.” 755 ILCS 45/2-1 (West 2016). The Power of Attorney Act establishes that the
       principal may empower another person to act as their agent “throughout the principal’s
       lifetime, including during periods of disability” and the principal must “have confidence that
       third parties will honor the agent’s authority at all times.” 755 ILCS 45/2-1 (West 2016).
       Section 2-5 of the Power of Attorney Act provides, in pertinent part, as follows:
               “Unless the agency states an earlier termination date, the agency continues until the
               death of the principal, notwithstanding any lapse of time, the principal’s disability or
               incapacity or appointment of a guardian for the principal after the agency is signed.”
               755 ILCS 45/2-5 (West 2016).
       Next, section 2-6(a) of the Power of Attorney Act states:
               “All acts of the agent within the scope of the agency during any period of disability,
               incapacity or incompetency of the principal have the same effect and inure to the
               benefit of and bind the principal and his or her successors in interest as if the principal
               were competent and not a person with a disability.” 755 ILCS 45/2-6(a) (West 2016).
       The statutory scheme makes it clear that this agency is strictly protected from judicial
       intervention except under a very narrow set of rigid procedural circumstances. Specifically,
       section 2-10 of the Power of Attorney Act provides, in relevant part, as follows:
                   “(a) Upon petition by any interested person (including the agent), with such notice
               to interested persons as the court directs and a finding by the court that the principal
               lacks either the capacity to control or the capacity to revoke the agency, the court may
               construe a power of attorney, review the agent’s conduct, and grant appropriate relief
               including compensatory damages.
                   (b) If the court finds that the agent is not acting for the benefit of the principal in
               accordance with the terms of the agency or that the agent’s action or inaction has
               caused or threatens substantial harm to the principal’s person or property in a manner
               not authorized or intended by the principal, the court may order a guardian of the
               principal’s person or estate to exercise any powers of the principal under the agency,
               including the power to revoke the agency, or may enter such other orders without


                                                    -6-
                appointment of a guardian as the court deems necessary to provide for the best interests
                of the principal.” 755 ILCS 45/2-10 (West 2016).
¶ 33       We consider the statutory mandates associated with a plenary guardianship proceeding for
       a purported disabled adult. Section 11a-17(c) of the Probate Act recognizes the agency created
       by a valid power of attorney may survive a disability and the appointment of a plenary
       guardian. 755 ILCS 5/11a-17(c) (West 2016). Section 11a-17(c) of the Probate Act provides
       that “[a]bsent [a] court order pursuant to the Illinois Power of Attorney Act directing a
       guardian to exercise powers of the principal under an agency that survives disability, the
       guardian has no power, duty, or liability with respect to any personal or health care matters
       covered by the agency.” (Emphases added.) 755 ILCS 5/11a-17(c) (West 2016). Thus, the
       Probate Act is entirely consistent with section 2-10 of the Power of Attorney Act, cited above.
¶ 34       Based on the representations of fact emphasized by Bledsoe’s attorney during oral
       arguments before this court, we recognize that both David and Bledsoe care deeply about
       Deborah’s comfort, care, and well-being but face significant challenges due to her advancing
       illness in spite of her young age. As Bledsoe’s counsel pointed out during the argument before
       this court, once Bledsoe placed her mother in the residential facility in 2013, David and
       Bledsoe have not had any noteworthy conflicts over Deborah’s day-to-day health care, with
       the exception of the denture issue that arose in 2016.
¶ 35       Bledsoe concedes that the 2014 order did not explicitly terminate David’s status as the
       power of attorney for health care for Deborah. Importantly, since becoming her mother’s
       plenary guardian, Bledsoe has not petitioned the court to explicitly revoke her mother’s 2013
       power of attorney as contemplated by section 2-10 of the Power of Attorney Act. 1 Yet,
       Bledsoe argues that the 2014 order implicitly revoked the agency relationship under the Power
       of Attorney Act and relies heavily on the decision of In re Estate of Doyle, 362 Ill. App. 3d 293
       (2005). We do not find the rationale in Doyle to be persuasive and decline to follow this Fourth
       District decision.
¶ 36       In Doyle, the trial court appointed a son-in-law as plenary guardian of his mother-in-law’s
       estate. Doyle, 362 Ill. App. 3d at 296-97. On appeal, the daughter argued, among other things,
       that the order appointing the son-in-law as the guardian was void because her mother
       previously executed a power of attorney giving the daughter the exclusive authority to make
       decisions affecting mother’s property. Doyle, 362 Ill. App. 3d at 299.
¶ 37       The appellate court found the judicial determination to appoint a plenary guardian
       “implicitly revoked” the daughter’s agency pursuant to section 2-10 of the Power of Attorney
       Act. Doyle, 362 Ill. App. 3d at 299. The appellate court explained that, although no petition
       was filed under section 2-10 of the Power of Attorney Act, all interested parties in the case
       were notified and had knowledge other persons were asking to become guardians of the
       disabled person’s estate. Doyle, 362 Ill. App. 3d at 299-300. The reviewing court noted the trial
       court heard testimony from a variety of witnesses before granting the request for guardianship.
       Doyle, 362 Ill. App. 3d at 300. Thus, the appellate court concluded that while the trial court did
       not expressly make reference to section 2-10 of the Power of Attorney Act, the court’s order
       appointing a plenary guardian implicitly met the requirements of section 2-10 of the Power of
       Attorney Act and stripped the daughter of her prior authority. Doyle, 362 Ill. App. 3d at 301.

          1
            Moreover, Foster’s 2014 petition for plenary guardianship did not request the trial court to
       explicitly revoke Deborah’s 2013 power of attorney in favor of David for her health care decisions.

                                                    -7-
¶ 38       We decline to follow the holding in Doyle as contrary to the statutory scheme. Instead, we
       adopt the rationale expressed by the dissent in that case based on overriding public policy
       concerns in addition to the mandates of the statutory construction. The dissent explained:
                    “The whole idea of the Durable Power of Attorney Law is that the decision of a
                competent principal to appoint an agent should not be easily overcome. The fact that
                the court would not have selected the agent selected by the principal is irrelevant; what
                is important is what the principal thought best, not what the court thinks is best. The
                legislature would not have enacted the Durable Power of Attorney Law if the solution
                was the appointment of a guardian of the estate; guardians of the estate could be
                appointed before the Durable Power of Attorney Law was enacted. The suggestion that
                whenever a guardian of an estate is appointed any exiting durable power of attorney is
                revoked is contrary to the spirit and the letter of the Durable Power of Attorney Law.”
                Doyle, 362 Ill. App. 3d at 306 (Cook, J., dissenting).2
¶ 39       We are unwilling to ignore Deborah’s unchallenged power of attorney based on implied
       assumptions arising out of the 2014 order entered by Judge Standard. Based on strong public
       policy considerations, we hold that the appointment of a plenary guardian in 2014 by Judge
       Standard did not automatically extinguish Deborah’s preexisting and unchallenged power of
       attorney naming someone, other than a judicially appointed guardian, as her designated agent
       for health care purposes.
¶ 40       Finally, we consider Bledsoe’s argument that the letters of guardianship issued by the
       deputy circuit clerk in 2014 contained the explicit language necessary to revoke David’s
       authority to make health care decisions for his wife. This argument ignores the April 22, 2014,
       guardianship order signed by Judge Standard and expressly directed the clerk to prepare the
       letters of guardianship “in accordance with the provisions of this Order.” (Emphasis added.)
¶ 41       In this case, the letters of guardianship issued by the deputy circuit clerk contained
       language beyond the terms contained in the court order dated April 22, 2014. This order gave
       Bledsoe the power to place her mother in a residential care facility without addressing
       Bledsoe’s authority to make dental care choices for her mother. Therefore, we reject Bledsoe’s
       argument that the letters of guardianship issued by the deputy circuit clerk should be
       interpreted as a judicial order revoking David’s status as Deborah’s power of attorney for
       health care. See 755 ILCS 45/2-10(g) (West 2014); 755 ILCS 5/11a-17(c) (West 2014).
¶ 42       For these reasons, we hold that absent a written court order explicitly directing a plenary
       guardian to exercise the powers of the principal under the agency pursuant to the Power of
       Attorney Act, the appointment of a plenary guardian does not automatically revoke an existing
       power of attorney for health care. The decision regarding whether Deborah should receive the
       proposed denture reline procedure is clearly within the scope of the unchallenged power of
       attorney for health care document that Deborah executed in 2013 giving David the authority to
       make such decisions.
¶ 43       On this basis, we reverse the trial court’s order dated April 8, 2016, denying David’s
       amended motion to allow dental services for Deborah and remand the matter to the trial court


           2
             We note that the Illinois Supreme Court referred to the Doyle decision in a footnote in Wilson, 238
       Ill. 2d at 540 n.9. However, the Illinois Supreme Court cited Doyle only to explain the procedural
       posture of the case and did not address the merits of that decision.

                                                       -8-
       for entry of an order consistent with this decision.

¶ 44                                        CONCLUSION
¶ 45      The judgment of the trial court of Knox County is reversed and remanded for entry of an
       order consistent with this decision.

¶ 46      Order reversed and remanded.

¶ 47       JUSTICE SCHMIDT, specially concurring.
¶ 48       I concur in the judgment. I do not concur in the majority’s discussion of Doyle. Supra
       ¶¶ 35-38. The facts in Doyle were sufficiently dissimilar to the facts in this case that I would
       simply find Doyle inapposite.




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