A very well drafted letter from Judy Ditkowsky asks, “Why did the GAL’s threatening KDD when all he wants to do is investigate?”

Posted on September 28, 2012 by jmdenison

Dear Readers;

Mrs. Ditkowsky has been kind enough to share her very well drafted letter with us on this blog. In it, the letter asks the most important question underlying the case, why do the GAL’s in a Probate proceeding threaten a third party attorney for merely investigating an alleged wrongful guardianship?

Inquiring minds want to know.

As an attorney, or even an outsider, it doesn’t take much to know that when one is threatened, there is assuredly a fat, thick, scab to pick that probably contains a good amount of pus and infection. I’m not a criminal atty, but at least I know that one.

Read on for some very interesting news. I never heard the entire story about the “threats”, I know the ARDC did not want the entire story to come out, so this is very interesting.

JoAnne

Dear Senator ______,

RE: Attorney SANCTIONED for SEEKING TO PROTECT A NINETY YEAR OLD LADY from severe repression of her civil and human rights!

My husband, Kenneth Ditkowsky, was threatened three years ago, that if he continued to represent the interests of a large group of relatives, personal friends and neighbors in their concern for the ongoing health and safety of a ninety year old lady, he would be hauled before the Court for sanctions and also the Illinois ARDC. At that point, he had done nothing but investigate what their complaint entailed. I personally was present in my husband’s office when the two telephone calls in which attorney Peter Schmiedel and Guardian ad litem Adam Stern made these threats, and heard them, because he put the calls on speakerphone specifically so that I would hear them. Ken had done nothing improper, and therefore threat of attorney sanctions were totally improper.

However, the threats were not made in vain. Within a year, Ken had been sanctioned, and within six months thereafter, these same sanctions were vacated by the Appellate Court, as having been issued totally without jurisdiction. Ken had been ordered (by the Circuit Court which incidentally had no jurisdiction) not to represent the ninety one year old lady and he NEVER had done so. He had, however, as an attorney bound by the Himmel rule, continued to report violations of her civil rights. He did so continuously, as there was no evidence that his reports had been taken seriously, and he widened the circle to whom the reports were made. He also had a responsibility as a citizen to take action for the protection of a person whose rights were covered under Federal Statute and the fourteenth and fourth and fifth amendments to the US Constitution. He had his own rights under the U.S. and the Illinois Constitution of Freedom of Speech, Freedom of Association, and the Right to Petition the Government for Redress of Grievances (the first amendment of the U.S. Constitution and the first Article of the Illinois Constitution).

Then step three was taken by attorney Schmiedel and Guardian ad litem Stern, now joined by Guardian ad litem Farenga. Amazingly, fifteen counts that Ken had misbehaved were brought by the attorney for the administrator of the Illinois ARDC. I use the term misbehaved advisedly. The fifteen counts met no criterion of specificity. Under the U.S. Constitution, a defendant has the right to know exactly what he is being accused of, but the attorney for the administrator ADMITTED in her response to the motion to dismiss that she had no idea what lies, deceptions, or interferences with the administration of justice had actually taken place other than that emails had been sent .

Suffice it to say that the hearing officers attorned completely to the actions of the ARDC and subjected my husband to a hearing. The hearing officer announced that two days and two days only were allotted to this hearing, and then allowed the prosecution to meander on until after four p.m. on the second day. Under the U.S. Constitution, how can a defense be limited to less than an hour of a business day, perhaps a hearing going to late in the evening of a weekend day? Beyond that, apparently there was some “underlying case” which could not be referred to. The “underlying case” could only have been the matter about which the supposed lies, deceptions and “interference with justice” were made.

Despite these obstacles, under oath the prosecution witnesses made significant admissions that they did not follow mandated procedures prescribed by state statute to protect the civil rights of their ward. Furthermore, while each retained the title of Guardian ad Litem after what was a VOID Plenary Guardianship according to the mandatory provisions of the State Statute, neither undertook to actually perform the duties assigned to a Guardian ad Litem, which are to protect the interest of the ward against malpractice by the Plenary Guardian, but instead invented non-existent duties which were to the detriment of their ward. The statement UNDER OATH by Cynthia Farenga was that in most cases the duties of the Guardian ad Litem are over in a few months, while in this case the Guardianship she has been awarded has extended for over three years. Does this mean that Ken has “interfered” with justice by making it possible for Mary Sykes to remain alive at the age of ninety three, having been kidnapped just before her birthday of nine decades under color of statute, been kept isolated from her family and friends, and been consigned to “elder day care”, having lost the comfort of her own home and the waste of all her assets?

There are two CD’s, taken a year apart, of Mary Sykes, after her incarceration under false pretenses in a home and daycare center. Neither shows the feeble-minded individual SWORN TO UNDER OATH by attorney Adam Stern. The first was taken a year after the kidnap occurred; the second, shows the ravages of two years spent under hostile conditions; yet Mrs. Sykes is still aware of her situations, her companion(s) and is lucid. In addition, independent observers of Mrs. Sykes have occasionally seen her at family events and have reported that she has been cogent; there has been no investigation permitted of Guardian Ad Litem’s sworn statement at ARDC hearing, that in his initial interview with Mrs. Sykes, there was no question of her incompetency. Mrs. Sykes is prevented from using the telephone to contact her relatives, but on the very day of the hearing, one was able to speak to her while her captor was not present and Mrs. Sykes was lucid and cognizant of whom she was speaking to (also, she was certainly aware of how to pick up and answer a telephone) despite her advanced age and the nearly complete isolation from all her family except for the plenary guardian, the guardian’s husband, and the granddaughter and the consignment to a day care center offering no intellectual stimulation, much less rehabilitative activity.

The General Accounting Office in 2010 issued a report of the nationwide abuses of the rights to life, liberty and property of elderly people. Has this report been placed into the circular file? It is up to our elected Senators and Representatives to stand up for the citizens of the United States who have had the nerve to live past the Soylent Green age of thirty and for those who who have had the nerve to care about the rights of their fellow citizens in the face of the actions herein complained of!

Mr. Ditkowsky has spent untold time, energy and material resources in the fight to free Mary Sykes. He has exposed, UNDER THE OATHS OF THE PROSECUTION’S WITNESSES in the process of this ARDC hearing, numerous instances of egregious disregard of statutes, court decisions, the U.S. Constitution and the Illinois Constitution. Under the most adverse of circumstances, his defense was able to show the TRUTH of the statements he has been making. He was able to bring into evidence even more evidence of the truth of the statements he has been making.

Nevertheless, the hearing panel did not consider any of this evidence but made their determination before leaving the building, as an order of misconduct was issued first thing the following Monday morning.

Please be advised that Mr. Ditkowsky has never been accused of mistreating the elderly; he has been sanctioned and his reputation impaired for over two years for OPPOSING the mistreatment of one very feisty and resilient old lady. Isaiah, chapter 58 is quoted yearly at this time that the Lord does not care about fasting and sackcloth when innocents are being abused. The armada of Government, however, in this case, is being employed to destroy the reputation of one who believes in the words of the Prophets, of the U.S. Constitution and of the Illinois Constitution, federal and state judiciary and laws and statutes.

I am writing to you in the sincere hope that an investigation into the conduct of this entire matter over a period of over three years will be ordered. This situation begins with the first attempt to chill any investigation into the circumstances of an almost ninety year old lady, on whose behalf almost twenty friends, neighbors, relative and fellow club members signed a petition and raised money for a retainer to pay my husband to look into the legal issues raised by what then seemed like a miscarriage of justice. It has continued through to the actions of the Attorney Registration and Discipline Committee which refused to dismiss an incompetent Motion for sanctions and in which its hearing officers issued an order of misconduct without taking the time to address any of the evidence allowed into the case as a result of the lines of questions introduced by the prosecution, which showed without a shadow of a doubt that neither the Guardians ad Litem nor the plenary Guardian were appointed in accordance with Illinois Statutes, decisions of appellate ( both federal and state) courts, or decisions of the United States Supreme court, in clear derogation of every free speech, right of association and right to petition for redress of grievances of the government. Please investigate how this can happen in 2012 in The United States of America!

I apologize for the length and detail of this letter.

Sincerely,

Judith Ditkowsky

Dear Judy;

You have absolutely nothing to apologize for. I loved your letter. Tomorrow I am going to try to help John Wyman and test the meddle of the Probate Court in Rockford. Soon as it is over, I will find the nearest Starbucks and give you all the results.

thanks again for your kind sharing and understanding.

JoAnne

From KDD–Sykes has TWO GAL’s. What are they supposed to be doing and why aren’t they gone in the case?

Posted on September 26, 2012 by jmdenison

From Ken, regarding GAL’s and guardianships and jurisdiction

The Court must first determine in every case if it has jurisdiction. If it has jurisdiction it has inherent powers to address the matters that come before it in the pending “case and controversy.” The key words are “case and controversy” After the appointment of a plenary guardian there is nothing more to do except supervise the plenary guardian.

A guardian ad litem functions as the “eyes and ears of the court” and not as the ward’s attorney. In re Guardianship of Mabry, 281 Ill.App.3d 76, 88, 216 Ill.Dec. 848, 666 N.E.2d 16 (1996), citing In re Marriage of Wycoff, 266 Ill.App.3d 408, 415–16, 203 Ill.Dec. 338, 639 N.E.2d 897 (1994). The traditional role of the guardian ad litem is not to advocate for what the ward wants but, instead, to make a recommendation to the court as to what is in the ward’s best interests. Mabry, 281 Ill.App.3d at 88, 216 Ill.Dec. 848, 666 N.E.2d 16. The role of the guardian ad litem is thus in contrast to the role of the plenary guardian of the person appointed pursuant to the Probate Act. Under section 11a–17 of the Probate Act, the plenary guardian makes decisions on behalf of the ward and must, in general, conform those decisions “as closely as possible to what the ward, if competent, would have done or intended under the circumstances.” 755 ILCS 5/11a–17(e) (West 2000). See also In re Marriage of Burgess, 189 Ill.2d 270, 278–79, 244 Ill.Dec. 379, 725 N.E.2d 1266 (2000) (guardian must generally “make decisions on behalf of a ward in accordance with the ward’s previously expressed wishes”).

In re Mark W., 228 Ill. 2d 365, 374, 888 N.E.2d 15, 20 (2008)

Ken Ditkowsky

http://www.ditkowskylawoffice.com/

From JoAnne

Dear Readers,

Now one would think that a GAL is supposed to be the “eyes and ears” and not take a side, not isolate a ward, not allow any of her property to be destroyed by the PG’s atty, PS, but it happened.

All of it happened.

Nothing was reported to the court, there is nothing in the court’s files indicating any concern on the part of the GAL’s.

How could this be you ask?

It is most certainly clear that everytime a GAL ticks off someone in the family, they make a bundle. They sell the ward’s paid for home for atty’s fees, they foment controversy, they get right in the middle of everything.

The other daughter is and has basically been pro se for 95% of this proceeding. The GAL’s are counting on that too.

It seems to me, when these controversies are involved, perhaps the senior and her family have a constitutional right to an atty–and the Probate Court should pay for that, not the senior or family when wrongs have been committed. This is especially so when the attys involved will be asking the estate for reimbursement in the case.

It is my opinion that once it became clear there was a conflict of interest with the GAL’s and the other daughter, the GAL’s should have been replaced and the case reassigned a new judge and the other daughter should have been appointed a pro bono atty if she asked for one. That would have made the proceeding much fairer and ensured justice.

take care

joanne

Let’s see which Probate Court does better–Rockford or the 18th floor of the Daley Center

Posted on September 25, 2012 by jmdenison

Dear Readers

As you may or may not know, John Howard Wyman has written an excellent book on the Probate court in Rockford, and his harrowing experiences there. If you don’t have a copy, please go out and get a copy. Out of stress and strife, John Wyman has done a great deal of good by writing a book on his experiences in order to help YOU, the people who have been denied justice in an Illinois Probate Court.

While I am not going to provide you with much comment on this case because there’s no reason–the pleadings speak for themselves, I did want make sure you have the pleadings in case you face a similar situation. Therefore, I am publishing all the documents in that case, namely,

John’s original Motion to Dismiss for Lack of Jurisdiction (Sodini)

JHW – Motion to Dismiss for Lack of Jurisdiction – filed Aug 31, 2012

Attorney Sharon Rudy’s Brief in Response

SRR – Response to Motion to Dismiss for Lack of Jurisdiction – filed Sept 14, 2012

My Reply Brief, filed yesterday:

JMD Reply Brief–Motion to Dismiss, Lack of Jurisdiction (Soldini)
The transcript from the last hearing in which I argued that the Motion to Dismiss IS in fact an emergency because everyday someone lives under a guardianship without jurisdiction is a day she has been deprived of life, liberty, property, human rights and civil rights without due process of law, which is a constitution violation under the US and Illinois state constitutions.

Transcript of hearing 8/31/12 re Emergency Motion to Dismiss or Nonsuit due to lack of Jurisdiction.

I will be ordering all the transcripts today.

I am also publishing the hearing date, time and place of September 28th, Court room 217, 400 West State St, Rockford Illinois, Judge Fabiano at 11:00 am so all the Probate groups can come out and watch and publish. This should be a major victory for the Probate groups. If the Honorable Judge Fabiano does her job, this should be a dismissal/nonsuit QED.

Judge Fabiano will be our heroine. She can then tell all the other Illinois probate judges to carefully check and question that all adult children, siblings and parents have been given notice of the date, time and place of hearing, in writing, 14 days in advance of the hearing.

thanks

JoAnne

I am publishing this because PLEADINGS SHOULD BE PUBLIC. The Rockford Court house has been given about 80 million dollars so far to get their court records computerized, and so far, nada. Attys cannot upload, the public cannot download and the system, like the Cook County system, is an electronic dinosaur.

I hope to also get all the transcripts and publish them for you in the Rockford case.

While I am actively involved in the case, I will refrain from commenting on it, you can still get the book (on Amazon), and read the pleadings and transcripts because I intend to do the job of the Illinois county courts and make them all public, as they should be.

thanks

joanne
PS – If you are having any problems opening the above links, try downloading the software for Google Drive–just google it. If that does not work, please email me and I will try to help.

Summary of Procedural Errors in In Re Mary Sykes

Posted on September 22, 2012 by jmdenison

From KDD:

I wonder if another letter to Judge Evans, Judge Stuart, the two Illinois Senators, the Judicial Inquiry Board, the ARDC. Gov Quinn and the Chief Judge of the Illinois Supreme Court might cause a stir!

Maybe you could ask as a concerned citizen how the actions in the Sykes case can be reconciled with the Sodini case. For instance the Petition does not comply with the statute. It is missing the names several people who are required to be named; i.e., Mary’s two sisters. The petition requires the disclosure of ‘powers of attorney’. There are none. 755 ILCs 11a – 7. Of course 755 ILCS 11a -10 (f) requires service on the ‘near’ relatives. These are Gloria and her two aunts. Neither was served.

If we get more basic, how come the proceeding was brought in Cook County – at the time of the filing Mary was residing in DuPage County. (755 ILCS 11a -3) The statute uses the world ‘shall!’

Sodini mandates that these technicalities are jurisdictional. No jurisdiction means no valid court orders could issue after Dec. 7, 2009.

If you look at section 18, the treatment of a disabled person is mandated – Isolating a disabled person from her younger daughter, he siblings, her friends, her activities is beyond the scope of authority. Indeed, the statute appears (section 18) is very clear that the plenary guardian is specifically prohibited from denying a disabled person her liberty, her property, her civil rights and her human rights. The affidavit of Mr. Evans that was attached to my answer demonstrates how perverted the process has become in Illinois.

What is scary is the fact that if the process that was followed in Gore, Tyler, Wyman and Sykes as examples were to be followed in the case of Romney or Obama each of our presidential candidates could have Carolyn Toerpe as their plenary guardian. Adam Stern could then and there tell the Court that Mr. Obama and Mr. Romney did not wish attorneys, Dr. ****** or **** could testify that he administered the mini-mental examination and combined Mr Romney and Mr. Obama scored 12 out of 44 and therefore neither has the capacity to care for themselves and need ReHab assist to look out for them 24/7. Cynthia Farenga can tell the Court with the same degree of certainty that she exhibited in the Sykes case that Mr. Obama was delusional when he said that he was the President of the United States and Mr. Romney has a vivid imagination when he claimed to have been nominated by those imaginary Republicans to be their nominee. After all – it is unethical to confuse her with the facts – she has made up her mind, and besides everyone knows that there are no Republicans in Cook County.

In all seriousness we need an ‘honest’ comprehensive and complete investigation now! I really would have trouble with Mr. Obama having Carolyn as his plenary guardian.

Ken Ditkowsky

http://www.ditkowskylawoffice.com/

This is what happens when Justice comes “from a list”

Posted on September 22, 2012 by jmdenison

Dear Readers;

This is in response to my assertions that Mary should not have to continually beg and plead for an attorney to get one, or make a complete stink, that she should be allowed to see her former attorney Ken Ditkowsky freely, that he should be allowed to help her and the Probate Court’s assertions that a Probate Judge, such as the august Judge Connors requires that a ward “really need” an attorney then she would appoint one. Of course, the GAL’s are appointed “from a list”, any independent counsel, if some ward really made a stink and it somehow got back, would not have their counsel of choice, but would have someone appointed “from a list”–which does absolutely no good, may as well have two GAL’s, oh that right, that already happened– and Judge Stuart’s assertions before a tribunal and Adam Stern’s that a ward cannot contract for an attorney is absolutely not supported by the case law. Of course, they’re both “from a list.”

Further, court supervisors are appointed “from a list” and are not chosen for their thriftiness, nor do they work for free, as here where the court has taken away all of the other daughter’s money, and the GAL’s threaten family members they cannot see Mary if they don’t tow the line.

The court is “from a list”, the GAL’s are “from a list”, anyone who speaks out if there is something wrong will require a supervisor “from a list” and you can’t get independent counsel because they won’t be “from a list”.

But the $1 million is well documented, not investigated and everyone “from the list” sticks together to deny an elder of her life, liberty, property, human rights and civil rights–clearly those must only come “from a list.”

I submit for your consideration that when justice “comes from a list” it is justice denied.

Read on for further ideas from KDD.

JoAnne

Now, from Ken:

The probate act is intended to be non-adversarial. In other words, the community is intended to come together to protect the elderly, the lame, the sick, and all who are unable in one way or another to help themselves. The intentions of the act are good. The history of the act goes back to basic Judio/Christian dogma.

The idea of fiefdom for any individual is alien and the idea that the civil rights of an individual would be forfeit by the Act is heresy. Unfortunately, the GAO report, the Sykes case and the others related thereto,i.e. Gore, Tyler, etc illustrate the avarice is a cancer that has pervaded the best of intentions. The idea that is advanced by Farenga, Stern, Schmiedel, et al that these guardianship proceedings are ‘secret’ rituals to be closely supervised by the elite (obviously themselves) is nothing short of pornographic. 755 ILCS 11a -18 makes it clear that if a guardian is to appointed the guardian does not have carte blanche – the guardian is an ‘angel’ whose appointment is intended to carry out the wishes of the ward in the highest fiduciary manner possible.

As Mr. Stern testified – the guardian is given absolute discretion to govern the life of the ward, including but not limited to isolating the ward (elder abuse) from family friends, willy nilly making the assets of the estate vanish, and punishing the ‘Gloria Sykes” who oppose the arbitrary governance of the ward’s estate.

The letter of NASGA to Judge Stuart that called attention to infamy that was being perpetrated in the Sykes case should have been welcomed by the Court and an immediate investigation should have followed. The idea of ignoring the citizen report was and is intolerable. Persons paid by the public are not anointed. The are not better than the rest of us peons. The government employee whether a judge, a guardian ad litem, etc is a ‘public trust’ and impacts a duty. The fact that Farenga, who ignored her duty repeatedly, made denials that Carolyn had sequestered and ignored not inventorying approximately a million dollars in collectibles (Au Coins), when Carolyn has not denied the same is obscene. The fact that Farenga and Stern knew that Carolyn was drilling the safety deposit box and could not be bothered to find out what was in the box is equally obscene; however, to not report the allegation to the Court and suggest that the allegation is imaginary when both neglected to observe or properly call for an investigation is pernicious. I do not have to state what I think of the attempts to deny First Amendment rights and to silence the protest of the alleged “theft” and the what followed.

In these cases in which a senior citizens rights, privileges and immunities are compromised (and in many cases forfeited) the failure of a Court to give credence to all public protestations of possible corruption is reprehensible. The attempts at ‘cover up’ are intolerable and require law enforcement at all levels to conduct ‘honest’, comprehensive, and complete investigations instanter. Justice Marshall, and Lord Mansfield are turning over in their graves! Buck vs. Bell and Dred Scott are alive and well in the Probate Division. Shame!

Ken Ditkowsky

http://www.ditkowskylawoffice.com/

From Ken Ditkowsky, what rights do a ward have, according to case law?

Posted on September 20, 2012 by jmdenison

Dear Readers;

In light of the fact that the Probate court is pushing its agenda that a ward MUST have an attorney selected from a list approved by the court, and a ward has no rights, as evidenced by Judge Connors deposition (published on this site), one wonders what is really going on.

I recall some years ago where SCOTUS (the US Supreme Ct) ruled that a 12 year old had the right to an atty that was separate from that chosen by his parents or the court.

A 12 year old has better rights that grandma or grandpa fighting a guardianship? I would hope not. But that’s what is going on everyday on the 18th floor of the Daley center and in other Probate courts in Illinois.

And I believe that just isn’t right.

Read on for some words of wisdom from Ken:

JoAnne

From Ken:

What has been happening to various seniors has been addressed by the Courts in a different context.

Molko v. Holy Spirit Assn., 46 Cal. 3d 1092, 252 Cal. Rptr. 122, 762 P.2d 46 (1988), as modified on denial of reh’g, (Dec. 1, 1988) (holding that the appointment of the parents as the temporary conservators of their adult children pursuant to a former statute that provided for the appointment of conservators of a person who is likely to be deceived or imposed upon by artful or designing persons, on the basis that the children had become coercively persuaded or brainwashed by a religious organization that they had joined, was a violation of the conservatees’ federal and state constitutional rights to religious freedom, in the absence of such actions that rendered the children gravely disabled as defined by law); Katz v. Superior Court, 73 Cal. App. 3d 952, 141 Cal. Rptr. 234 (1st Dist. 1977).

In an action by the parents of an 18-year-old congenitally deaf woman who was alleged to be incompetent under a state statute on the grounds that she was socially naive and was being brainwashed, programmed, and secreted by members of a religious sect, the daughter could not be declared incompetent on a finding that she was “judgmentally immature” where the sole effect of immaturity as the standard by which to judge one incompetent to manage her person or property manifested itself as an abridgement of her constitutionally guaranteed right to the free exercise of her religious beliefs, there being no financial assets of which the woman could be deprived by artful or designing persons. Matter of Guardianship of Polin, 1983 OK 111, 675 P.2d 1013, 44 A.L.R.4th 1199 (Okla. 1983).

39 Am. Jur. 2d Guardian and Ward § 24

Apparently in some States the Constitution is taken seriously and the First Amendment actually means something. I am glad of that.

From Judy Ditkowsky–a great summary of the case from her perspective

Posted on September 19, 2012 by jmdenison

Dear Judy;

Thanks for passing this along. I understand before whatever the hearing board does is made final, Ken will be able to submit more argument after learning of specific findings of fact.

Thanks again, you are a great writer and don’t be shy.

JoAnne

First of all, approximately 3 years ago, the attorney for the older sister (Carolyn) in the Sykes case, AND the “special” guardian ad litem called Ken in his office, within an hour of each other, each threatening to file a claim before the ARDC. They threatened to have Ken brought up on charges before the Circuit Court, as they said that the Court had ruled that there was to be no further inquiry into the Sykes case. At that time, I was in the office almost every day because of Ken’s problems with secretaries quitting and/or being sick and I was there when they called. Ken put the calls on speakerphone so I heard them. Ken was livid at this threat.

About a year to a year and a half ago, an ARDC claim was filed by the attorney for Carolyn (Peter Schmiedel), and the two guardians ad litem: the original guardian, Cynthia Farenga and the special guardian ad litem, Adam Stern. When Ken continued to investigate they filed a petition in the Circuit Court for sanctions, and Ken was eventually declared “a bad boy”. He appealed the case,and the claim was THROWN OUT FOR WANT OF JURISDICTION by the APPELLATE court.

After Ken won in the Appellate Court, the undeterred GALs (guardians ad litem) continued to press charges and filed the instant proceedings with the ARDC, with fifteen claims that Ken lied, was deceitful and was interfering with the course of justice and that he had sent emails. Ken had sent the emails, and of course admitted that. BUT he asked for specifics. You have taught law classes and you know that vague claims are not allowed. During the discovery process, the attorney for the ARDC admitted that the ARDC did not have information on what Ken had lied about or how he had interfered with the administration of justice. Of course, then Ken filed a motion to have the ARDC charges disallowed for want of knowledge, clarity and specificity. The first indication that this might not be a level ground proceeding was that Ken’s motion was denied. So he had to defend himself against essentially unknown charges.

Once he came to the hearing, the chief hearing officer sustained every motion of the ARDC to squelch any questioning that had to do with the truth or falsity of what Ken had said, calling it “trying the underlying case”. What was the underlying case? Ken has not appeared for anyone in “the underlying case”. The attorney for the ARDC administrator spent over an hour emphasizing that Ken had been sanctioned by the ARDC, and tried to ignore the actions of the Circuit and Appellate Court on the case which the appellate court had thrown out. By allowing this to proceed, was the hearing officer impartial? Well, I’m not impartial either, but I don’t think it came through as something which properly should have been allowed to occur.

The hearing officer had over-ruled Ken’s objection to telephone testimony by a physician whom Ken had contacted regarding the facts of something that Ken had written to the doctor and was supposed to be in the doctor’s files. When the telephone testimony occurred, the doctor could not find the document or the place on the document to which the ARDC attorney was referring. (All the other witnesses had the benefit of this attorney coming over to them and showing them where to look). Eventually, the hearing officer got so frustrated that he asked to speak to the court reporter at the doctor’s office. The doctor’s reply was “She’s not here”. The hearing officer let this travesty of testimony continue for several minutes before finally stating that the doctor would have to come and testify in person on Friday. If the court reporter who had been hired by the ARDC was noton the scene and recording what was happening, how could the hearing officer hear the testimony, if this was a level field hearing?

The hearing officer had allowed two days (Thursday and Friday) for the hearing and stated firmly that that was all the time allotted. He said that both sides, the ARDC and Ken, had thought it would take only one day, and he had allotted the second day only as an emergency spillover. Then he allowed the ARDC to put on its case until I think it was four o’clock on Friday afternoon. Is this a level playing field?

Nevertheless, with all the obstacles presented, Ken and his attorney were able to show that the older daughter’s attorney KNEW that money which had been frozen by the court system at his request was money involved in an insurance claim in which Gloria (the younger daughter) was the only litigant: the money had NOTHING to do with the old lady. They were able to get the “special” guardian ad litem to admit that the mother was living in Du Page county, when the statute shows that probate proceedings MUST take place in the county in which the person at risk of guardianship actually lived, which was not Cook County; that Mrs. Sykes living sisters (required specifically by the law) had never been formally notified that they had the right to be at any guardianship hearing, the mother was only told of her rights to an attorney of her choice and a six person jury in a meeting in the home of the daughter whom the mother had specifically asked for an order of protection against, by this guardian — so this did not meet the legal requirements. No one contested the claim that Ken has voiced that the mother had been admitted to the hospital for a swallowing disorder only AFTER she had lost 10% of her body weight, nor had the guardians ad litem done anything to protect their ward’s health. The guardian ad litem actually stated that “these things happen to these people” — ie, preventable illness in his ward is none of his duty as the “eyes and ears of the court”. The second guardian ad litem admitted that the only time she ever saw Mrs. Sykes was when the older daughter brought her to her office in Evanston because “Naperville was too far away” and the other guardian lived closer. That is precisely why the Statute says that the proceedings must take place in the county where the person resides. Naperville is in Du Page county, so she knew that she was not a qualified guardian under the statute. Ken and his attorney were able to bring in the transcript in which the first judge in the case clearly said that if the MD (the one with the telephone testimony travesty and Mary’s long time physician) would not sign the form which said that Mrs Sykes was incompetent , the guardians should find another doctor who would–i.e., go doctor shopping And, when he cross examined the first guardian ad litem, Ken was able to get him to admit that there were two doctors who routinely sign such documents and one of them was the doctor who signed the paper for Mrs. Sykes. Finally, Ken’s attorney, when cross-examining the Evanston guardian, got her to admit that the older daughter was allowed to drill a safety deposit box with neither guardian ad litem present, even though they had received all these emails, because they “KNEW” that the gold in the box was imaginary. When they called Ken as an adverse witness, he had the chance to give the four reasons he had to believe that the gold was real: 1) when he drew a will for Mrs. Sykes some years ago, he had properly investigated the size and type of estate he was drawing a will for; 2) Mrs. Sykes sister had told him of the way in which at least part of it had been acquired (inheritance from a specific estate), 3) he had seen one of the coins, so he was able to describe it to coin dealers and/or look up its value in coin catalogs so that he could estimate the total value at that time of the treasure, and 4) that the person accused of having taken the gold without inventory had never denied the allegation. Remember, he was under oath and he is supposed to be presumed innocent and therefore telling the truth. Ken was able to state that he had been asking for investigations by Law Enforcement of activities which did not seem to fit any definition of proper behavior, and that he had been open in all his emails so that the various complainants could not complain that he was acting behind their backs.

The only action which the ARDC attorneys took to “prove” that Ken was telling lies was having the various witnesses they call deny (of course all were under oath) that they had ever done anything illegal — but over and over and over again– clearly another time waster. Last time I studied the matter, in the U.S., a person is innocent until proven guilty — in this level of hearing, by clear and convincing evidence. Under oath these witnesses had admitted that they had not performed the duties required by the law, had not protected Mrs. Sykes interests, had trampled over the rights of others, all of the matters that Ken had been calling for an investigation of. No evidence was given that anyone had ever done anything except to ask what “he said” or “she said”. Ken’s attorney brought out that the fact that these guardians had remained active in the case for no pay was not the ordinary course of legal practice of private attorneys who have bills to pay. Ken specified exactly how much he had been paid (very very little and only at the outset) and that he had an escrow fund that includes more that what he can possibly ever be called upon to return, and that he was acting as a concerned citizen after he had been barred from representing any party in the case… and also because as a lawyer he is bound by an actual mandatory reporting law for questionable behavior of other lawyers or governmental officials. This is called the Himmel rule, after an adjudication. The behavior of the guardians’ ad Litem, the judges, the attorney for the older sister, make it clear that they believe that ONCE a malfeasance has been reported, peons cannot report it again if no investigation has been made by a third party. This is not the clear intent of the ruling of the court which promulgated this rule, nor of the baseline statute. Of course, in their opening statement, the ARDC attorneys had stated that Ken had raised the spector of the Greylord hearings just when the public was beginning to respect the Cook County courts after so many years. No doubt or question about that: most of Ken’s emails had had the word Greylord in their title!!!

Ken was under oath; having been called as an adverse witness, he was able to bring material that had previously been disallowed to the attention of the court. Since the order was apparently written before the hearing officers left for the day.. it was issued early on Monday, obviously, Ken’s exculpatory evidence had clearly never been looked at — again, the presumption of innocence was ignored. Is this a level playing field???

When the transcript is issued… and obviously, the hearing officers relied “only” on their memory of what they had heard …all of this will be part of the public record. In the meantime, the charges against Ken have been on the internet for months and no doubt the order is there now too.

In the meantime, Ken’s attorney showed that the doctor knew that the way in which Ken had phrased his questions did not make it mandatory that he respond. He also showed that the amount of time that the guardian ad litems and the attorney for the older daughter had spent was clearly optional on their part, as they had never sent their copies of the email to spam, formally requested of Ken that he stop copying them on the emails, or taken any action short of the ARDC to stop getting the emails. Meanwhile the ARDC lawyers attempted to break copyright laws by putting blogs into evidence without permission of the copyright owners of the blogs. This is one of the few things they were not allowed to do.

Interestingly, the effect of Ken’s campaign has actually allowed vulnerable people to call upon the “Sodini rule” (an appelate court case relating to the laws of guardianship which I mentioned above), get their hearings, and not be declared wards of the court without due process, have their civil liberties abrogated and the money they worked for all their lives squandered by guardians and kept from their children and grandchildren and rightful heirs. Is this interfering with justice? which was one of the fifteen counts, or is it interfering with nefarious activity?

Why should Ken need character witnesses? He was not accused of stealing from the elderly! He was accused of telling lies about public officials, and the officials under oath were forced to admit the truth of some of those accusations despite the active assistance of the chief hearing officer with the attempts of the ARDC attorneys to bar this evidence. Over the two days, about fifteen people came in to witness the hearing, and that did not include Naomi and myself. Those who could stayed the whole time. One lady who came had a family member from whom nine million dollars was extracted. In another case, I think in Colorado, a ward died under strange circumstances and her body was cremated within hours. The General Accounting Office wrote a report last year stating that elderly abuse by state officials is endemic nationwide. Was this a level playing field? I’m not unbiased, but I still think not. How was the field tilted? There has been plenty of evidence in the past few years about how such things have been done in other cases. Is it likely that what looks like a duck, quacks like a duck, swims like a duck, breaks bones like a duck is a duck??????

Ken is not playing dead by any means. Exactly how he intends to go about ordering the evidence that he has been railroaded is still being decided.

Judy
From Joanne again;
Great job and wonderful observations and summary. I only had to correct a few words and typos. You did great and raised some wonderful questions regarding the proceeding.

My question is, how did they spend soooo much time on soooo much testimony regarding what was or was not done in the Sykes probate case when it is clear from the record 95% of those actions occurred when the court had no jurisdiction?

Not having jurisdiction is like the accused who is convicted and spends 3 years in prison when he was never in fact arrested or tried. So everyone talks about the incarceration for 2 days? I don’t get that.

And it’s not like you need witnesses to prove that point. There are 3 declarations on this website from the younger daughter and two elderly sisters of Mary attesting to the fact that they never received 14 days advanced written notice from the petitioner of the date, time and place of hearing, meaning the court actually lost jurisdiction and became a nullity on December 7, 2009. It’s all in writing. The records are published on this website. 3 declarations and a court order from November 18, 2009 setting the hearing date says it all.

The rest is actually history, but I don’t understand how or why the hearing board had to go any further after that.

Working without jurisdiction incurs great liability on all the attys involved in the case and the two judges. The first judge actually sits on the Court of Appeals for the 2nd district and she could not figure out a simple case of jurisdiction? She ran the Sykes probate court from December 7, 2009 until December 23, 2010 without jurisdiction, issuing about an order per month–and all of those orders weren’t worth the Charmin they were printed on!

I guess I don’t understand the ARDC hearing process at all. They accuse Ken of misconduct while at the same time, there was an elephant pooing in their courtroom and they claim not to see the elephant or the mounds of elephant poo.

No one has explained the elephant and the elephant poop to me yet.
JoAnne

From Ken Ditkowsky–Happy Rosh Hashanna and a return to ethics for a new year!

Posted on September 15, 2012 by jmdenison

Dear Readers;

While Ken was informing me of the Jewish New Year, (happy New Year), I was quipping about the year 5773 is so big it should be done in log form base 10 which means that 2012 is actually 3.03 and I forget 5773, but you all can do the math yourself (and yes, logs are actually math, not arithmetic).

Whenever someone hands me an annoying form I don’t want to fill out, I typically do the date in log form, which can be a whole lot of fun! For example, today is 3 exp 2/3*5/10exp3.03. People love it and I can teach them math! how convenient is that?

I told him I love any holiday as long as it involves good food and drinking. Champagne preferrably, but a prosecco will do in a pinch!

take care all, and Happy New Year 10exp3.73!

joanne

Dear JoAnne

I am not a religious nut! The fact is that I am an ultra liberal Jew. This means I am like the Catholic Easter Bunnies in ‘spades!’ I go to the house of worship so often that I still have to use my GPS to find the place.

that said, the Jewish New Year is the holiest days of they year. (actually Yom Kippur is, it’s the day after or before, I forget, but I have to agree with you, Ken that a New Year should be the holiest because, well, religion should look forward and forget the darned guilt!) It a turning point in life when a Jew reflects on his/her conduct, forgives his/her enemies and asks for personal forgiveness. It is a beginning and an end. It is a celebration of life and redemption.

Few people can honestly even suggest that they are without sin. Few people can look in the mirror and say, I like that person. On the high holy days a jew looks into that mirror and asks the question and gives an answer.

An attorney takes an oath that is essentially as follows:

I do solemnly swear (or affirm, as the case may be), that I will support the constitution of the United States and the constitution of the state of Illinois, and that I will faithfully discharge the duties of the office of attorney and counselor at law to the best of my ability. IL ST CH 705 § 205/4

What do those words mean? They mean that I support the right of Mary Sykes and all mankind to liberty, property, civil rights and human rights. It means that I am not going to watch your civil rights, Mary’s civil rights, Gloria’s civil rights or ***’s civil rights be trampled into the ground. more specifically it means that I am not intimidated by Adam Stern, Cynthia Farenga, Peter Schmiedel, or any of their companions and ‘fellow traveler’s.’ It means that I am not intimidated by the ARDC panel or anyone else that takes objection to the fact that I have spoken out and will continue to speak out when I see injustice, breach of the law, and ‘cover up.’ It also means that I will continue to contact law enforcement to demand an honest, complete and comprehensive investigation into the Mary Sykes affair and every one of the similar cases – indeed, it also means that I will aid and abet law enforcement in bringing to justice each of the miscreants who have and are continuing to deny ‘grandma’ of her liberty, her property, her civil rights and her human rights.

The Jewish holiday reinforces the obligation of the attorney oath as I as an American was born with a gold spoon firmly attached to both ends. I am a 2nd generation American. My Grandfather homesteaded land in North Dakota and my father worked his way through medical school in the ‘cleaning plants’ of Chicago. Each provided me with the heritage of Freedom. My personal moral code dictates that I not squander that Freedom but allowing or sitting silent when I see Adam Stern, Cynthia Farenga, Peter Schmiedel and others participate in the activities that have been documented in Sykes, Gore, Tyler, Wyman and dozens of similar type cases now pending or disposed by the ultimate solution.

In today’s American society it may be politically correct to look the other way when a senior citizen is isolated from her family, her friends and neighbors, and it may be ethically challenged to assemble, protest to authorities and to activist groups, or otherwise object that the documented activities of Troepe, Stern, Farenga, Schmiedel and others; however. in the year 5773 (2012) and following as long as the good Lord gives me life I intend to continue my protest for every senior or otherwise handicapped person who is abuse, exploited, or otherwise deprived of his/her liberty, property, civil rights and human rights.

I like the person whose image appears in the mirror when I shave. The oath I took on November 28, 1961 meant something to me then and it means something to me now. The High Holidays is a reaffirmation!

While I have the soapbox, I remember being in Judge Hoffman’s Court on one of the two Jewish holidays. Hoffman liked to require Jewish lawyers to attend motion call on the Holidays, and as a young attorney you showed up prior to services. Anyway, we were waiting for Julius the Just to appear, when in stormed the Chief Judge of the US District Court, he accosted Hoffman as they approached the bench. The chief Judge (I cannot think of his name – he was Italian) roared: “Julius, I do not give a damn if you respect yourself, but I demand that you respect me! When you labor on the High Holy days you show your disrespect for me.”

Hoffman slink ed out of the courtroom and there were no more high holiday sessions in his courtroom.

In a similar manner when I allow myself to be intimidated or distracted from my obligation to support the United States Constitution and the Illinois Constitution by the likes of Stern, Farenga, Schmiedel, Black et al, I demonstrate not only disrespect for me, but for you and America. Democracy is not a spectator sport! Our American tradition and our Judeo-Christian tradition (and I need to add in the Muslims, Wiccans, Druids there, can’t forget them, I think that needs to be corrected to Judeo-Christian-Wiccan-Pagan Tradition) is also not a spectator sport. The fight that we have engaged in is more than a battle to protect senior citizens from Court appointed predators – it is our demonstration to our friends, neighbors, family, and most importantly our children and grandchildren that I respect me and thee!

Ken Ditkowsky

http://www.ditkowskylawoffice.com/

Breaking news–KDD found guilty of “misconduct” but exactly what miscondut?

Posted on September 15, 2012 by jmdenison

Dear Readers;

Apparently today KDD received a letter from the ARDC saying they found him guilty of “misconduct”. No reasoning. No findings of fact, no conclusions of law, no reasoning. Just a blanket statement.

So what was the misconduct, exactly? Was it because Larry Hyman made CF cry? Was it because the cats in the peanut gallery commented on the fact LB’s high heels were too big and she flashed boobage during the proceeding clearly aimed at her second chair and the hearing panel chair to distract them? Was it because the peanut gallery, consisting of the 6 to 8 major probate blogs shows up and laughed at LB during appropriate moments because she is clearly technologically challenged?

Many inquiring minds want to know. Hey, I want to know.

But outpouring of sympathy and support for KDD is resplendent among the bloggers and peanut gallery and anyone else who read and reads his words of wisdom.

I advised him long ago to go to Federal Court because the ARDC was clearly “in” on all of this too and friends and cronies of the miscreants. But did he listen? Heck no.

So Ken, don’t dispair. Get your butt over to federal court where the judges didn’t sleep during Con Law 101 and don’t have cronies on the 18th floor. That’s where you belong and that’s where your intellect and abilities will shine. Mucking around with the alligators in the swamp is not where you belong. You are better served up on the hill with wise, intellectual human beings for a change.

take care

joanne

—– Forwarded Message —–
From: Martin
To: “NASGAmembers@yahoogroups.com” <NASGAmembers@yahoogroups.com>
Cc: kenneth ditkowsky
Sent: Friday, September 14, 2012 5:32 PM
Subject: Re: [NASGAmembers] From Attorney Ken Ditkowsky re: Order – dated August 10, 2012 In re: Kenneth Ditkowsky 2012 PR 00014

Ken I would suggest on Monday you contact Richard Thompson of the Thomas More Law Center and have them represent you pro bono for violations of your 1st amendment rights to free speech. I was on the security detail for Pastor Terry Jones and Wayne Sapp and they were railroaded to about their free speech rights and they won their case.

Richard Thompson is the former Oakland County Prosecutor who successfully convicted Dr. Jack Korvorkian of assisted suicide. I will call you tomorrow with the contact information and the other contact person there is my friend Kathlyn Lynch.

Never give up my friend.

Regards,

Marty Prehn

PS Sounds like we may need a protest

From: nasga us <nasga.org@gmail.com>
To: NASGAIllinois@yahoogroups.com; NASGAmembers@yahoogroups.com
Sent: Friday, September 14, 2012 5:56 PM
Subject: [NASGAmembers] From Attorney Ken Ditkowsky re: Order – dated August 10, 2012 In re: Kenneth Ditkowsky 2012 PR 00014

From: kenneth ditkowsky <kenditkowsky@yahoo.com>
Date: Fri, Sep 14, 2012 at 1:41 PM
Subject: Order – dated August 10, 2012 In re: Kenneth Ditkowsky 2012 PR 00014
To: NASGA <nasga.org@gmail.com>, probate sharks <verenusl@gmail.com>, JoAnne M Denison <JoAnne@denisonlaw.com>, Tim Lahrman Bev Cooper

Larry Hyman called to tell me apparently before the ARDC panel left for the day they found me guilty of misconduct. As representatives of the various organizations that protest elder abuse/financial exploitation of the elderly sat through the hearing it is apparent that each organization having a person present has an opinion as to the veracity of the finding that I acted improperly. It would be helpful to me, if you would publicly express that opinion to the panel, the ARDC, and the public in general.

The ARDC order did not specify what conduct was misconduct, but, as the only conduct alleged was my complaining about the fact that Mary Sykes was railroaded into a guardianship sans jurisdiction and this situation has prevailed for three years – It is apparent that Lawyers are guilty of misconduct if they report elder abuse, financial exploitation of the elderly and/or exercise their First Amendment Rights.

It thus appears that the policy of the State of Illinois as stated in 735 ILCS 110/5 is just verbiage- it means absolutely nothing. It apparently is the policy of the State of Illinois that the jurisdictional protections of 755 ILCS 11a – 1 et seq are irrelevant. It is apparently the policy of the State of Illinois that the protections of the First Amendment are irrelevant, and the Supreme Court is also irrelevant. An attorney who acts to disclose the ‘dirty little secret’ that senior citizens are being routinely deprived of their life, liberty, their property, their civil rights and human rights you can expect that you will be disciplined. Censorship is alive and well! The separation of a 90 year old lady from a million dollars of assets is a subject that must be ‘covered up!’ To request an investigation is obviously unethical.

Even though it is aggravation of my misconduct to advocate to law enforcement that they investigate the Mary Sykes case and similar cases I renew my call for an honest, complete and comprehensive investigation. I do believe, though I could be wrong, this is still America and we still have a First Amendment and a Bill of Rights. Democracy is not a spectator sport!

Ken Ditkowsky

http://www.ditkowskylawoffice.com/
Dear Ken;
Just a minor correction, but seniors are being deprived of life, liberty, property, human rights and civil rights. We all know that nursing homes are dangerous places and seniors live about 40% or more fewer years there than in their own homes, so when probate courts declare seniors ALWAYS demented, ALWAYS in need of 24/7 specialized care in a lock down facility (to be sure they don’t escape home before the home is sold), then medicare liens the home, sells it and that pays the US govt AND the probate attys–everyone gets a piece of grandma’s and grandpa’s pie, except the families, we KNOW they’re not happy and they will lose the will to live. It is clearly a deprivation of life, liberty and property and the shameful, dirty little secret of the US, and probate attys in general.

Ken Ditkowsky does a Cable Access Show on Sykes

Posted on September 13, 2012 by jmdenison

Dear Readers;

In case you did not know, last night Ken Ditkowsky and Bev Cooper engaged in a wonderful discussion of the evil and corruption which has crept into the 18th floor of Probate, and specifically this show featured the ARDC proceedings.

I was at the taping, and I have been promised disks of relevant shows which I will post on Vimeo and Facebook for your viewing enjoyment. The cable show airs on the North Shore in various suburbs on Comcast including approx. Highland Park, Winnetka, Lake Forest, etc. Bev tells me it will air repeatedly over the next few days, which is great and will give the issues a whole lot more exposure.

Please read on for KDD’s wonderful assessment of portions of his trial (which I happen to agree with).

I also want to thank Bev and Ken Cooper very much for all their hard work on these shows, protecting Probate Court victims and eliminating corruption from the courts.

JoAnne

Ms. Denison/Ms Cooper

Ms Cooper, thank you for the opportunity to appear on your program and express my views on the Elder Abuse/Financial Exploitation of the Elderly situation.

On the way home from your studio I was reminded of the most serious of the allegations that I have made concerning the Elder Abuse/Financial Exploitation situation. It is interesting that it is the one series of allegations that the ARDC has stayed far away from even though, the ARDC attorney wanted to know if I repented for writing a complaint letter to Attorney General Holder and disclosed the three currency situation that I believe that I uncovered. Of course I did not repent as I believe that under the First Amendment I have a right to communicate with my government and with the public. The cross examination questions are significant in that they assumed that there was something wrong with my communicating with law enforcement and others information that is detrimental to a whole group of well connected individuals who receive from the State and Federal governments very significant sums of money. (The suggestion that it was unethical to disclose the three currency scenario was most troubling. Why should the ARDC be concerned that I was disclosing a ‘fraud!’?) The verification of situation was not only the statement from a nursing home owner, but the fact that my niece was terminated in retaliation. As a citizen I have a right to be concerned and under the First Amendment my right is absolute. Our Federal Government is 16 trillion dollars in debt. It is respectfully submitted that every citizen should report questionable situations in which the hard earned tax dollars may be acquired under suspicious circumstances.

That said, the nursing home agreements are all uniform and all drafted by the very same attorney for his key client. The agreements involve the basic structure of the nursing home agreements. The crux of the agreement up until I got involved was understood by people in the know to be a debtor/creditor relationship masquerading as a limited partnership. Pursuant to the agreement the understanding was that the general partners were to receive a management fee of 5 to 7% of the gross income of the facility.

The attorney who drafted the agreement recognized that under Illinois law the only person who can manage a nursing home (care facility) is a State licensed administrator. Thus he drafted the agreement to provide that the general partners can participate in the management (administration) and not create a conflict of interest. If they participated the management would receive the fee of 7% – 9%. To participate in the management a State license is required. The agreements that I was furnished – in my opinion – do not authorize an exception to 805 ILCS 215/406 (f) with regard to the statutory prohibitions infra.

Thus, in most of the nursing homes – I say most, because there might be an exception or two – the licensed administrator manages the nursing home and is usually paid a salary. There is no provision for an unlicensed administrator. Now read 805 ILCS 215/406 (f). “(f) a general partner is not entitled to remuneration for services performed for the partnership” Thus, Mr.Esformes, Mr. Kaplan, Mr. Rothner, et al. have been taking money for management of the partnership and were not entitled to the same. If this money was charged to the State of Illinois as part of the administrative expense in medicaid or similar cases the State of Illinois (and the United States of America) have been overcharged in the same manner as might be alleged in connection with the transportation, drug, nursing, etc. The big difference is that with the number of nursing homes, the duration and **** we could be talking a billion (with a B) dollars in State reimbursements. Depending on how this was reported on tax returns were could be talking about a significant amount of taxes. Accordingly, we need an immediate honest, complete, and comprehensive investigation into all these elder abuse/financial exploitation cases. As I’ve indicated this investigation must do more than just scratch the surface. I believe that the Sykes case is tied into the Federal Investigation into the transportation of nursing home occupants (Kaplan and Rothner), the pharmaceutical purchases (Esformes), Energy (Multiut) etc ****. This is an octopus with many heads. I previously suggested that there were three currencies used to ‘cover up’ the miscreant activity. US currency being used for legitimate operations, nursing home beds for intramural transactions, and opportunity for even more critical scenarios. (As I am not a professional investigator at best the foregoing is supposition. It may be 100% wrong; however, I believe in its accuracy and therefore submit it to my friends and to selected law enforcement, including Senator Kirk to ascertain if my observations are accurate)

Now couple all this with the other politically related Elder Care scandals involving isolation, deprivation of rights, cover up, voting, etc., in which the cabal is involved, then we are talking some major money and a major reason for attempting to shut up lawyers who might blow the whistle or might alert the authorities.

As I informed the ARDC attorneys during cross examination, I intend to continue to exercise my First Amendment Rights and report to my friends, my neighbors, my clients and my government the information that I feel needs investigation. As I told Mr. Carter and Mr. Doluce my files are open to them and I will share. With our government is in need of funds to operate, I believe that those who desire to deny the senior citizens their liberty, their property, their civil rights and/or their human rights ought to pay their fair share.

Ken Ditkowsky

www.ditkowskylawoffice.com

Illinois Law as it relates to Incompetency

Posted on July 13, 2012 by jmdenison

During the Marg G Sykes Hearing on July 6, 2012, Dr Shaw endlessly ranted on about his version of the term competency. He continuously justified his reasons for declaring Mary Sykes incompetent. Here is a very articulate and well written article written by Ken that demonstrates why this is just all wrong!

PROOF OF INCOMPETENCY

1. Statute:

Currentness

§ 11a-3. Adjudication of disability; Power to appoint guardian.

(a) Upon the filing of a petition by a reputable person or by the alleged disabled person himself or on its own motion, 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. NB NOTE THE STANDARD OF PROOF SET BY THE STATUTE. This does not allow for Mr. Stern, Ms Farenga, et al .to make an agreement to allow for the appointment of their favorite as the plenary guardian. If the court adjudges a person to be a disabled person, the court may appoint (1) a guardian of his person, if it has been demonstrated by clear and convincing evidence that because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, or (2) a guardian of his estate, if it has been demonstrated by clear and convincing evidence that because of his disability he is unable to manage his estate or financial affairs, or (3) a guardian of his person and of his estate.

(b) Guardianship shall be utilized only as is necessary to promote the well-being of the disabled person, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual’s actual mental, physical and adaptive limitations. NB. As Mary Sykes passed a written examination that was administered by the Secretary of State shortly before the petition was filed – the total deprivation of her privileges and immunities was not authorized by statute. IL ST CH 755 § 5/11a-3

2. Procedure:

A petition for the appointment of a guardian of the estate or of the person, or both, of a disabled person may be filed by any reputable person or by the disabled person himself or herself.1 The petition must state, if known or reasonably ascertainable:

— the relationship and interest of the petitioner to the respondent;2
— the name, date of birth, and place of residence of the respondent;3
— the reasons for the guardianship;4
— the name and post office address of the respondent’s guardian, if any;5 or of the respondent’s agent or agents appointed under the Illinois Power of Attorney Act;6
— the names and post office addresses of the nearest relatives of the respondent, in the following order:
1. the spouse, adult children, parents, and adult siblings, if any, if none;
2. the nearest adult kindred known to the petitioner;7 See: In re: Sodini The Courts have ruled this jurisdictional and in particular this prevents the railroading of a vulnerable person into bondage. Having the family know about the proceedings and having 14 days to prepare they can obtain counsel and address the fact that the person appointed as plenary guardian by the agreement of Mr. Stern, Ms. Farenga et al was the very person may sought a protective order against.
— the name and address of the person with whom, or the facility in which, the respondent is residing;8
— the approximate value of the personal property and real estate;9
— the amount of the anticipated annual gross income and other receipts;10
— the name, post office address, and, in case of an individual, the age and occupation of the proposed guardian and his or her relationship to the respondent.11

In addition, if the petition seeks the appointment of a previously appointed standby guardian as guardian of the disabled person, the petition must also state:

— the facts concerning the standby guardian’s previous appointment;12 NB. Again the disabled person is protected from a lazy court, or lazy guardian ad litem, or just momentum. Obviously this requirement was ignored in the appointment of CT as plenary guardian. and
— the date of death of the disabled person’s guardian or the facts concerning the consent of the disabled person’s guardian to the appointment of the standby guardian as guardian, or the willingness and ability of the disabled person’s guardian to make and carry out day-to-day care decisions concerning the disabled person.13

A notary public’s failure to sign the jurat on a verification of the petition for guardianship of a disabled person, does not deprive the court of jurisdiction to approve a report of the sale of the disabled person’s real estate, where the notary public administered an oath to the petitioner, and the notary seal and the petitioner’s signature were on the petition.14

Footnotes

755 ILCS 5/11a-3(a).

A person with a financial interest in having an individual determined to be disabled and in having a guardianship created is not precluded from serving as a petitioner in a guardianship proceeding. See In re Betts, 109 Ill. 2d 154, 92 Ill. Dec. 838, 485 N.E.2d 1081 (1985).

755 ILCS 5/11a-8(a).

755 ILCS 5/11a-8(b).

755 ILCS 5/11a-8(c).

755 ILCS 5/11a-8(d).

755 ILCS 45/1-1 et seq.

755 ILCS 5/11a-8(e).

755 ILCS 5/11a-8(f).

755 ILCS 5/11a-8(g).

755 ILCS 5/11a-8(h).

755 ILCS 5/11a-8(i).

755 ILCS 5/11a-8(j).

755 ILCS 5/11a-8(k).

In re Devereux’s Estate, 63 Ill. App. 2d 1, 211 N.E.2d 19 (1st Dist. 1965). 2 Horner Probate Prac. & Estates § 35:8

5/11a-10. Procedures preliminary to hearing

Currentness

§ 11a-10. Procedures preliminary to hearing.

(a) Upon the filing of a petition pursuant to Section 11a-8, the court shall set a date and place for hearing to take place within 30 days. The court shall appoint a guardian ad litem to report to the court concerning the respondent’s best interests consistent with the provisions of this Section, except that the appointment of a guardian ad litem shall not be required when the court determines that such appointment is not necessary for the protection of the respondent or a reasonably informed decision on the petition. If the guardian ad litem is not a licensed attorney, he or she shall be qualified, by training or experience, to work with or advocate for the developmentally disabled, mentally ill, physically disabled, the elderly, or persons disabled because of mental deterioration, depending on the type of disability that is alleged in the petition. The court may allow the guardian ad litem reasonable compensation. The guardian ad litem may consult with a person who by training or experience is qualified to work with persons with a developmental disability, persons with mental illness, or physically disabled persons, or persons disabled because of mental deterioration, depending on the type of disability that is alleged. The guardian ad litem shall personally observe the respondent prior to the hearing and shall inform him orally and in writing of the contents of the petition and of his rights under Section 11a-11. The guardian ad litem shall also attempt to elicit the respondent’s position concerning the adjudication of disability, the proposed guardian, a proposed change in residential placement, changes in care that might result from the guardianship, and other areas of inquiry deemed appropriate by the court. NB Mary appeared in Court and vigorously objected to the guardianship. She filed complaints with the Illinois Department of aging, and others. Mr. Stern made statements directly contradictory to the expressions of Mary Sykes – Documents have surfaced – I presented them and Gloria Sykes presented them that contradict Ms. Stern’s representations.l complaints to the ARDC have fallen on deaf ears – in fact it appears that making these very complaints have resulted in disciplinary proceedings being brought against me. Notwithstanding any provision in the Mental Health and Developmental Disabilities Confidentiality Act or any other law, a guardian ad litem shall have the right to inspect and copy any medical or mental health record of the respondent which the guardian ad litem deems necessary, provided that the information so disclosed shall not be utilized for any other purpose nor be redisclosed except in connection with the proceedings. At or before the hearing, the guardian ad litem shall file a written report detailing his or her observations of the respondent, the responses of the respondent to any of the inquires detailed in this Section, the opinion of the guardian ad litem or other professionals with whom the guardian ad litem consulted concerning the appropriateness of guardianship, and any other material issue discovered by the guardian ad litem. The guardian ad litem shall appear at the hearing and testify as to any issues presented in his or her report.

(b) The court (1) may appoint counsel for the respondent, if the court finds that the interests of the respondent will be best served by the appointment, and (2) shall appoint counsel upon respondent’s request or if the respondent takes a position adverse to that of the guardian ad litem. NB.Mary has made numerous requests for representation that have been ignored. Interestingly it appears that Stern has on several occasions informed the Court that Mary does not want an attorney. As Mary has made her requests in writing and these requests are part of the record – Mr. Stern’s credibility is sharply in doubt. Once again the actions of Stern and Farenga were reported to the ARDC and fell on deaf ears. The conflict between the GALs and Mary Sykes is legend. The record is replete with breaches of fiduciary relationship – focus on one fact – ‘why are there two GALs in this Estate?’ Now focus on the unbridled and unfounded verbal and written attacks by the GALs (and especially Farenga) on the younger daughter of Mary. Why has Mary’s younger sister been isolated from Mary Sykes. Prior to these events the two were literally joined at the hip! the respondent shall be permitted to obtain the appointment of counsel either at the hearing or by any written or oral request communicated to the court prior to the hearing. The summons shall inform the respondent of this right to obtain appointed counsel. The court may allow counsel for the respondent reasonable compensation.NB. Gloria Sykes has pointed out that the service on Mary was quite interesting. The Sheriff of Cook County was directed by the applicant for plenary guardian to serve Mary in Chicago – however, the applicant had taken Mary to DuPage County. The applicant (CT) made many attempts to get Mary’s doctor to give her a certificate of incompetency for Mary, but her refused. In August 2009 the transcript of proceedings reveals the Court advising CT to fine a more cooperative doctor – she did an Mary received bench service. Ms. Sykes in her investigation determined that the required warnings had not been give Mary Sykes. WHAT IS MOST DISTURBING IS THE FACT THAT EVERY ATTORNEY WHO HAS LOOKED INTO THIS CASE HAS BEEN SUBJECTED TO HARASSMENT. (I will not reiterate what has befallen me!)

(c) If the respondent is unable to pay the fee of the guardian ad litem or appointed counsel, or both, the court may enter an order for the petitioner to pay all such fees or such amounts as the respondent or the respondent’s estate may be unable to pay. However, in cases where the Office of State Guardian is the petitioner, consistent with Section 30 of the Guardianship and Advocacy Act,1where an elder abuse provider agency is the petitioner, pursuant to Section 9 of the Elder Abuse and Neglect Act,2 or where the Department of Human Services Office of Inspector General is the petitioner, consistent with Section 45 of the Abuse of Adults with Disabilities Intervention Act, no guardian ad litem or legal fees shall be assessed against the Office of State Guardian, the elder abuse provider agency, or the Department of Human Services Office of Inspector General.

(d) The hearing may be held at such convenient place as the court directs, including at a facility in which the respondent resides.

(e) Unless he is the petitioner, the respondent shall be personally served with a copy of the petition and a summons not less than 14 days before the hearing. The summons shall be printed in large, bold type and shall include the following notice:

NOTICE OF RIGHTS OF RESPONDENT

You have been named as a respondent in a guardianship petition asking that you be declared a disabled person. If the court grants the petition, a guardian will be appointed for you. A copy of the guardianship petition is attached for your convenience.

The date and time of the hearing are:

The place where the hearing will occur is:

The Judge’s name and phone number is:

If a guardian is appointed for you, the guardian may be given the right to make all important personal decisions for you, such as where you may live, what medical treatment you may receive, what places you may visit, and who may visit you. A guardian may also be given the right to control and manage your money and other property, including your home, if you own one. You may lose the right to make these decisions for yourself.

You have the following legal rights:

(1) You have the right to be present at the court hearing.

(2) You have the right to be represented by a lawyer, either one that you retain, or one appointed by the Judge.

(3) You have the right to ask for a jury of six persons to hear your case.

(4) You have the right to present evidence to the court and to confront and cross-examine witnesses.

(5) You have the right to ask the Judge to appoint an independent expert to examine you and give an opinion about your need for a guardian.

(6) You have the right to ask that the court hearing be closed to the public.

(7) You have the right to tell the court whom you prefer to have for your guardian.

You do not have to attend the court hearing if you do not want to be there. If you do not attend, the Judge may appoint a guardian if the Judge finds that a guardian would be of benefit to you. The hearing will not be postponed or canceled if you do not attend.

IT IS VERY IMPORTANT THAT YOU ATTEND THE HEARING IF YOU DO NOT WANT A GUARDIAN OR IF YOU WANT SOMEONE OTHER THAN THE PERSON NAMED IN THE GUARDIANSHIP PETITION TO BE YOUR GUARDIAN. IF YOU DO NOT WANT A GUARDIAN OF IF YOU HAVE ANY OTHER PROBLEMS, YOU SHOULD CONTACT AN ATTORNEY OR COME TO COURT AND TELL THE JUDGE.NB the transcripts reveal that Mary asked for many of these rights and others asked for these right for Mary; however, they were totally ignored. This appears to be a pattern.

Service of summons and the petition may be made by a private person 18 years of age or over who is not a party to the action.

(f) Notice of the time and place of the hearing shall be given by the petitioner by mail or in person to those persons, including the proposed guardian, whose names and addresses appear in the petition and who do not waive notice, not less than 14 days before the hearing.
Credits

P.A. 79-328, § 11a-10, added by P.A. 80-1415, § 1, eff. Jan. 1, 1979. Amended by P.A. 81-795, § 1, eff. Sept. 16, 1979; P.A. 82-534, § 1, eff. Sept. 16, 1981; P.A. 88-380, § 135, eff. Aug. 20, 1993; P.A. 89-396, § 15, eff. Aug. 20, 1995; P.A. 90-628, § 25, eff. Jan. 1, 1999; P.A. 95-373, § 5, eff. Aug. 23, 2007; P.A. 96-1052, § 5, eff. July 14, 2010; P.A. 97-375, § 15, eff. Aug. 15, 2011.

Formerly Ill.Rev.Stat.1991, ch. 110 ½, ¶ 11a-10.

Relevant Notes of Decisions (41)

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Notes of Decisions listed below contain your search terms.

Guardian ad litem–In general

A guardian ad litem is not required after a hearing on a mentally disabled adult’s competence or after a plenary guardian of the person is appointed. In re Mark W., App. 1 Dist.2006, 308 Ill.Dec. 656, 371 Ill.App.3d 81, 862 N.E.2d 589, appeal allowed 310 Ill.Dec. 249, 223 Ill.2d 635, 865 N.E.2d 969, reversed 320 Ill.Dec. 798, 228 Ill.2d 365, 888 N.E.2d 15, on remand 2008 WL 2484601. Mental Health Description: Key Number Symbol 488

If the juvenile court is going to appoint a guardian ad litem for a mentally-disabled-adult parent that is a party to a proceeding for termination of parental rights, the appointment should be made pursuant to the Probate Act. In re Mark W., App. 1 Dist.2006, 308 Ill.Dec. 656, 371 Ill.App.3d 81, 862 N.E.2d 589, appeal allowed 310 Ill.Dec. 249, 223 Ill.2d 635, 865 N.E.2d 969, reversed 320 Ill.Dec. 798, 228 Ill.2d 365, 888 N.E.2d 15, on remand 2008 WL 2484601. Infants Description: Key Number Symbol 205; Mental Health Description: Key Number Symbol 487

Guardian ad litem appointed to represent incapacitated adult represents ward’s best interests, rather than ward; guardian ad litem is only required prior to hearing on ward’s competence, although guardian ad litem or next friend may be appointed to represent ward’s interests in subsequent litigation. In re Guardianship of Mabry, App. 4 Dist.1996, 216 Ill.Dec. 848, 281 Ill.App.3d 76, 666 N.E.2d 16, rehearing denied. Mental Health Description: Key Number Symbol 133; Mental Health Description: Key Number Symbol 485.1; Mental Health Description: Key Number Symbol 495

Circuit court is charged with duty to protect interests of ward and has, by statute and otherwise, those powers necessary to appoint guardian ad litem to represent interests of ward during court’s exercise of its jurisdiction. In re Serafin, App. 2 Dist.1995, 208 Ill.Dec. 612, 272 Ill.App.3d 239, 649 N.E.2d 972. Mental Health Description: Key Number Symbol 471; Mental Health Description: Key Number Symbol 487

Attorney’s failure to bring to trial court’s attention conflict in her dual roles as mentally disabled patient’s attorney and guardian resulting from patient’s request to represent herself, which required trial court to consult with guardian to determine whether patient should be allowed to represent herself, could not relieve court of its responsibility for making required appointment of guardian to protect patient’s interest. In re Estate of Ohlman, App. 1 Dist.1994, 197 Ill.Dec. 9, 259 Ill.App.3d 120, 630 N.E.2d 1133. Mental Health Description: Key Number Symbol 133

If patient has already been involuntarily committed as mentally ill and danger to himself or others, court considering whether to appoint guardian must presume that patient is not capable of protecting patient’s interests. In re Estate of Ohlman, App. 1 Dist.1994, 197 Ill.Dec. 9, 259 Ill.App.3d 120, 630 N.E.2d 1133. Mental Health Description: Key Number Symbol 135

Statute governing appointment of guardian ad litem requires court to appoint guardian ad litem unless court has grounds for finding that guardian is not needed. In re Estate of Ohlman, App. 1 Dist.1994, 197 Ill.Dec. 9, 259 Ill.App.3d 120, 630 N.E.2d 1133. Mental Health Description: Key Number Symbol 133

Trial court committed reversible error when it failed to appoint separate guardian ad litem to protect interests of mentally disabled patient once patient asserted right to proceed without assistance of counsel; trial court needed guardian ad litem to help determine whether to appoint counsel for patient against patent’s wishes. In re Estate of Ohlman, App. 1 Dist.1994, 197 Ill.Dec. 9, 259 Ill.App.3d 120, 630 N.E.2d 1133. Mental Health Description: Key Number Symbol 133; Mental Health Description: Key Number Symbol 156

Individual adjudicated disabled adult for whom guardian was appointed as result of petition by his mother was not deprived of his rights by entry of original guardianship order despite lack of compliance with statutorily mandated requirements applicable to disability adjudication including lack of medical report describing nature and extent of individual’s physical and mental disability and presence of individual or representation by guardian ad litem or other counsel at hearing, where there was no contention that individual was not disabled adult under definition of Probate Act and court implemented measures for individual’s protection as result of petition. In re Estate of Steinfeld, 1994, 196 Ill.Dec. 636, 158 Ill.2d 1, 630 N.E.2d 801, certiorari denied 115 S.Ct. 59, 513 U.S. 809, 130 L.Ed.2d 17. Mental Health Description: Key Number Symbol 156

Even under ch. 110, ¶ 54 providing that if party is declared incompetent prosecution or defense shall be maintained by party’s representative, guardian ad litem or next friend, it is not reversible error to fail to appoint guardian ad litem for one for whom actual incompetence has not been formally so adjudged. Freiders v. Dayton, App. 2 Dist.1978, 19 Ill.Dec. 316, 61 Ill.App.3d 873, 378 N.E.2d 1191. Mental Health Description: Key Number Symbol 496

Court before which action was brought for specific performance of contract for purchase of house owned by 85-year-old woman, although it was not required to appoint guardian ad litem for defendant houseowner, was under the circumstances within its power in doing so. Freiders v. Dayton, App. 2 Dist.1978, 19 Ill.Dec. 316, 61 Ill.App.3d 873, 378 N.E.2d 1191. Mental Health Description: Key Number Symbol 487

Appointment of guardian ad litem to act as representative for party in need of such representation is procedural and not jurisdictional matter. Freiders v. Dayton, App. 2 Dist.1978, 19 Ill.Dec. 316, 61 Ill.App.3d 873, 378 N.E.2d 1191. Mental Health Description: Key Number Symbol 488

n.b. Where circuit court on appeal from probate court adjudged alleged incompetent to be competent, probate court could not thereafter hold attorney for alleged incompetent in civil contempt of court for disobedience of orders previously entered by probate court concerning inquiry into mental condition of alleged incompetent or for assisting in denying guardian ad litem free access to alleged incompetent or assisting alleged incompetent to avoid service of process in connection with incompetency proceeding. In re Pine’s Estate, App.1958, 16 Ill.App.2d 584, 149 N.E.2d 787. Contempt Description: Key Number Symbol 49

In considering appointment of a guardian ad litem, the question to be determined is the capacity of the person whose fitness is challenged to intelligently choose counsel and consult and advise with him in conduct of litigation, or capacity to manage and care for the particular business or matter involved. In re Pine’s Estate, App.1958, 16 Ill.App.2d 584, 149 N.E.2d 787. Mental Health Description: Key Number Symbol 488

Generally, there should be no conflicting interest between alleged incompetent and the party representing him as guardian ad litem. In re Pine’s Estate, App.1958, 16 Ill.App.2d 584, 149 N.E.2d 787. Mental Health Description: Key Number Symbol 492

Where proceeding to have an elderly woman declared incompetent was commenced by principal beneficiary under her will in order to prevent her from conveying her property to another, probate court should proceed with extreme caution in exercise of discretion to appoint a guardian ad litem to represent alleged incompetent and only after notice to alleged incompetent. In re Pine’s Estate, App.1958, 16 Ill.App.2d 584, 149 N.E.2d 787. Mental Health Description: Key Number Symbol 133

Circuit court did not abuse its discretion in failing to appoint a guardian ad litem to represent alleged incompetent in proceeding for appointment of a conservator, where alleged incompetent was aware of nature of proceeding and possessed sufficient judgment to select his own counsel to defend his interests. Rankin v. Rankin, App.1944, 54 N.E.2d 58, 322 Ill.App. 90. Mental Health Description: Key Number Symbol 133

Where there has not been a judgment fixing mental status of one of parties to a proceeding alleged to be incompetent, court has power to determine all facts essential to a proper adjudication upon need for a guardian ad litem for such party. Cowdery v. Northern Trust Co., App.1944, 53 N.E.2d 43, 321 Ill.App. 243. Mental Health Description: Key Number Symbol 490

—- Compensation, guardian ad litem

Circuit Court retained authority to award guardianship fees to public guardian who was appointed as temporary guardian for disabled ward, and to ward’s guardian ad litem, even after ward’s death terminated the guardianship; Probate Act explicitly provided for the award of reasonable fees for temporary guardians and guardians ad litem, and nothing in the statutes terminating a guardian’s authority to act for the ward upon the ward’s death deprived the court of power to award fees after the ward’s death. In re Estate of Pellico, App. 2 Dist.2009, 334 Ill.Dec. 12, 394 Ill.App.3d 1052, 916 N.E.2d 45. Mental Health Description: Key Number Symbol 180.1; Mental Health Description: Key Number Symbol 493

Statute on payment of guardian ad litem’s fee in proceeding to appoint guardian for disabled adult clearly expresses that court may assess guardian ad litem fees only against respondent or his or her estate or, in event respondent is unable to pay, against petitioner. In re Estate of Bishop, App. 2 Dist.2002, 268 Ill.Dec. 136, 333 Ill.App.3d 1113, 777 N.E.2d 1059. Mental Health Description: Key Number Symbol 493

Son who filed counter petition in daughters’ proceeding to appoint guardian for their mother, in which son asked that mother not be adjudicated disabled or, in alternative, that son be named her guardian, was “petitioner” for purposes of statute on payment of fees of guardian ad litem by petitioner if respondent is unable to pay; initial petition was filed by daughters, but son inserted himself in matter by filing counter petition and created issues to which guardian ad litem had to respond, namely, whether son should be appointed guardian. In re Estate of Bishop, App. 2 Dist.2002, 268 Ill.Dec. 136, 333 Ill.App.3d 1113, 777 N.E.2d 1059. Mental Health Description: Key Number Symbol 493

Trial court had statutory authority to tax temporary guardian ad litem fees against ward, where court appointed attorney and temporary guardian ad litem to represent ward in proceeding, there was no finding that appointment of guardian ad litem was not necessary, and court determined that ward was able to pay fees, even though there was never finding that ward was disabled, petitioners never sought hearing on petition for appointment of permanent guardian, and case was dismissed for want of prosecution. In re Serafin, App. 2 Dist.1995, 208 Ill.Dec. 612, 272 Ill.App.3d 239, 649 N.E.2d 972. Mental Health Description: Key Number Symbol 158.1

Trial court’s conclusion that disabled adult for whom guardian ad litem was appointed, after adult had refused to consent to surgery, would not pay fees was reasonable, for purpose of determining whether guardian ad litem should be allowed fees, where no one affiliated with hospital or with suit had any contact with adult after she was released from hospital. In re Estate of Stoica, App. 1 Dist.1990, 148 Ill.Dec. 555, 203 Ill.App.3d 225, 560 N.E.2d 1152. Mental Health Description: Key Number Symbol 493

Implicit in each probate act section providing for taxation of costs is necessity for appointment of both guardian of estate of disabled person and guardian ad litem, and where petition forappointment of permanent guardian was dismissed after hearing and private counsel had appeared on behalf of allegedly disabled adult as soon as notice was received of pending hearing on guardianship, relevant provisions of Probate Act furnished no justification for taxation of guardian ad litem and temporary guardian costs to subject of the petition. In Interest of Prior, App. 3 Dist.1983, 72 Ill.Dec. 423, 116 Ill.App.3d 666, 452 N.E.2d 676. Mental Health Description: Key Number Symbol 158.1

Where guardian ad litem had been allowed fee in circuit court for his services as guardian ad litem of incompetent, and Appellate Court was without knowledge of fees customarily charged by members of bar of county where action was brought, and parties did not present evidence on nature and extent of services performed and value thereof, it was proper that award of fee for guardian ad litem on appeal be fixed by circuit court, and Appellate Court would remand cause to circuit court to determine fee on appeal. Cain v. Hougham, App.1969, 116 Ill.App.2d 439, 253 N.E.2d 137. Mental HealthDescription: Key Number Symbol 493

Self-representation

Evidence that mentally disabled patient was totally without understanding or capacity to make responsible decisions concerning her person or her assets required trial court to reverse its prior decision to allow patient to represent herself, absent strong evidence that appointment of counsel was not in patient’s best interest. In re Estate of Ohlman, App. 1 Dist.1994, 197 Ill.Dec. 9, 259 Ill.App.3d 120, 630 N.E.2d 1133. Mental Health Description: Key Number Symbol 133 NB This case points out the conflict that the Court GALs and the Guardians must face. Whenever confronted by any member of the public or Mary herself seeking to assert the statutory and Constitutional Rights the mantra is Mary said she does not want ****(you fill in the blanks). The Court accepts the statement – but, if Mary is indeed incompetent then the rights have to be asserted because she is unable to decide for herself as to whether or not it is in her best interests to waive rights. By not holding the actual hearings that are required by statute and applying the proper standards basic civil rights of the elderly are being ignored. Essentially a Soviet style Gulag has been promulgated. As a matter of law, the court and its appointee have entered into a conspiracy to violate the First, Fifth, Thirteenth, and Fourteenth Amendments to the United States Constittion. As these actions are ultra vires, the question of immunity is off the table. The Nuerenberg Trials settled this argument.

Counsel

If the guardian ad litem (GAL) for a mentally disabled ward in a probate proceeding and the ward are in agreement, the GAL does in effect represent the ward; however, the court must appoint separate counsel if the ward requests it or if the ward and the GAL take different positions. In re Mark W., App. 1 Dist.2006, 2006 WL 1667495, opinion withdrawn, opinion modified and superseded 308 Ill.Dec. 656, 371 Ill.App.3d 81, 862 N.E.2d 589, appeal allowed 310 Ill.Dec. 249, 223 Ill.2d 635, 865 N.E.2d 969, reversed 320 Ill.Dec. 798, 228 Ill.2d 365, 888 N.E.2d 15, on remand 2008 WL 2484601. Mental Health Description: Key Number Symbol 491 NB The Administration of the programs designed to protect the senior citizen from abuse and exploitatin have demonstrated in not only Sykes, but nationally that the patently untrue statement of the GAL or other appointed person is consider as gosspel

In probate proceedings, if the guardian ad litem and the ward are in agreement, the guardian does in effect represent the ward; however, the court must appoint separate counsel if the ward requests it or if the ward and guardian take different positions. In re Mark W., App. 1 Dist.2006, 308 Ill.Dec. 656, 371 Ill.App.3d 81, 862 N.E.2d 589, appeal allowed 310 Ill.Dec. 249, 223 Ill.2d 635, 865 N.E.2d 969, reversed 320 Ill.Dec. 798, 228 Ill.2d 365, 888 N.E.2d 15, on remand 2008 WL 2484601. Mental Health Description: Key Number Symbol 495The words of the Mark case appear to be mandatory – but ****

Court could appoint counsel for mentally disabled patient who did not request counsel and who took no position adverse to counsel only if it found that appointment was in patient’s best interests. In re Estate of Ohlman, App. 1 Dist.1994, 197 Ill.Dec. 9, 259 Ill.App.3d 120, 630 N.E.2d 1133. Mental Health Description: Key Number Symbol 133

Court could appoint attorney but no guardian ad litem for mentally disabled patient based on determination that attorney could provide protection that would otherwise be guardian’s responsibility, although this required attorney to act as both guardian ad litem and as attorney. In re Estate of Ohlman, App. 1 Dist.1994, 197 Ill.Dec. 9, 259 Ill.App.3d 120, 630 N.E.2d 1133. Mental Health Description: Key Number Symbol 133

Respondent in proceeding to have him declared incompetent has the right to retain his own attorney. In re Pine’s Estate, App.1958, 16 Ill.App.2d 584, 149 N.E.2d 787. Mental Health Description: Key Number Symbol 133

Service of process

Constructive service on person domiciled within state, but located outside borders thereof, held not to give jurisdiction in proceeding in personam for declaration of incompetency and appointmentof conservator for person. McCormick v. Blaine, 1931, 178 N.E. 195, 345 Ill. 461. Mental Health Description: Key Number Symbol 131

Notice

Allegedly disabled adult received reasonable notice of hearing at which petition to appoint public guardian for him would be heard and opportunity to be heard during that proceeding, thus satisfying federal due process; summons and copy of petition were personally served, summons supported conclusion that he was given reasonable notice of hearing, which in turn gave him opportunity to be heard, and he had no known living spouse or adult kindred. Young v. Murphy, N.D. Ill.1995, 883 F.Supp. 256, reconsideration denied 161 F.R.D. 61. Constitutional Law Description: Key Number Symbol 4339; Mental Health Description: Key Number Symbol 130

In an original guardianship proceeding, the nearest living relatives of the alleged disabled adult must be given notice, and failure to give notice to such relatives is a jurisdictional defect requiring vacation of the order appointing a guardian. In re Estate of Debevec, App. 5 Dist.1990, 142 Ill.Dec. 302, 195 Ill.App.3d 891, 552 N.E.2d 1043. Guardian And Ward Description: Key Number Symbol 13(3) Matter of Sodini, App. 4 Dist.1988, 123 Ill.Dec. 67, 172 Ill.App.3d 1055, 527 N.E.2d 530.

Notice to one alleged to be incompetent and his/her close relatives is required before he may be adjudged incompetent and a conservator appointed for him. Matter of Sodini, App. 4 Dist.1988, 123 Ill.Dec. 67, 172 Ill.App.3d 1055, 527 N.E.2d 530. Mental Health Description: Key Number Symbol 128 (notice must be 14 days prior) NB in Illinois like most States the lower Courts are obligated to take direction from the Courts of last resort. as the Appellate Court has ruled that the notice to the close relatives is jurisdictional it is very difficult to rationalize the fact that the close relatives were not afforded notice and Stern, Farenga, Schmiedel continue to act under color of statute to keep Mary Sykes in bondage, not report the dissipation of approximately a million dollars of her assets, isolate her from her friends, family and activities and deny her liberty, property, civil right and human rights. What is also most disturbing is the number of times that Mary Sykes has been rushed to the Emergency Room. Last December she was neglected and lost 10% of her body weight.

Failure of son and granddaughter of woman, in their petition to have woman adjudicated incompetent and to be appointed conservators of her estate, to give notice of time and place of hearing on the petition to other son of woman did not result in fraud upon the court concerning woman’s need for a conservator or petitioners’ qualifications to serve in that capacity. In re Neuf’s Estate, App. 5 Dist.1980, 40 Ill.Dec. 704, 85 Ill.App.3d 468, 406 N.E.2d 907. Mental Health Description: Key Number Symbol 129

Authority of court

The trial court exceeded its authority when it sua sponte appointed a guardian ad litem for two adult former foster children, who had allegedly suffered permanent and severe physical and psychological injury as a result of sexual abuse by their foster fathers, over the objection of the former foster children and their attorney; the trial court never held a competency hearing or declared that former foster children were incompetent or disabled, the doctrine of parens patriae did not apply since former foster children were competent adults, and the trial court failed to comply with the provisions of the Probate Act for appointing a guardian. J.H. v. Ada S. McKinley Community Services, Inc., App. 1 Dist.2006, 308 Ill.Dec. 255, 369 Ill.App.3d 803, 861 N.E.2d 320. Infants Description: Key Number Symbol 1238(1); Infants Description: Key Number Symbol 1240(1); Mental Health Description: Key Number Symbol 487; Mental Health Description: Key Number Symbol 490

Hearings

Statute setting out preliminary procedures for appointment of guardians for disabled adults and providing that hearings were to be held within 30 days of filing of petition was directory, rather than mandatory, and thus failure of trial court to hold hearing within 30 days of filing of petition by son and son-in-law seeking guardianship of mother did not void court’s guardianship order;NB. Time constraints are irrelevant when the object of the guardians are involved. They only apply to limit the objectors (i.e. ordinary citizens exercising their First Amendment Rights) statute did not contain any negative language or provide any sanction or other consequences for failure to conduct hearing within 30 days of filing of petition, and rights of mother would not be injuriously affected by the fact that hearing was not held within statutory time period. (Per McCullough, J., with one justice specially concurring.) In re Estate of Doyle, App. 4 Dist.2005, 297 Ill.Dec. 868, 362 Ill.App.3d 293, 838 N.E.2d 355, rehearing denied, appeal denied 303 Ill.Dec. 2, 218 Ill.2d 539, 850 N.E.2d 807. Mental Health Description: Key Number Symbol 137.1
Footnotes

1 20 ILCS 3955/30.

2 320 ILCS 20/9. 755 I.L.C.S. 5/11a-10, IL ST CH 755 § 5/11a-10

Current through P.A. 97-704 of the 2012 Reg. Sess.

IL ST CH 755 § 5/11a-10

Upon the filing of a petition by a reputable person or by the alleged disabled person himself or on its own motion, 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. If the court adjudges a person to be a disabled person, the court may appoint (1) a guardian of his person, if it has been demonstrated by clear and convincing evidence that because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, or (2) a guardian of his estate, if it has been demonstrated by clear and convincing evidence that because of his disability he is unable to manage his estate or financial affairs, or (3) a guardian of his person and of his estate. 755 ILCS 5/11a-3(a).

Guardianship shall be utilized only as is necessary to promote the well-being of the disabled person, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual’s actual mental, physical and adaptive limitations. 755 ILCS 5/11a-3(b).NB: This is a sticking point. A guardianship is not an all or nothing thing. If the Court finds that I am a spendthrift that does not mean that I have to have permission of the plenary guardian to attend the church of my whim and desire or to eat drink and be merry to the full extent of my allowance. The guardian is a ‘crutch’ not a Dominique.

There is a clear distinction between a proceeding to adjudge a person mentally ill and one to adjudge him incompetent. The former relates to an inquiry and determination as to the condition of his mind without special reference to his property. The latter relates to an inquiry and determination as to his habits regarding his disposition to spend, waste or lessen his estate. It is not necessary to find a person to be mentally ill and totally lacking in capacity to manage his affairs. A mild form of mental illness may make a person highly susceptible to certain emotional appeals and incapable of making rational decisions concerning the disposition of his income or his estate. This could constitute waste of his estate and subject him to want and suffering even though the objects of his bounty may be engaged in worthwhile spiritual or religious activities. The test is incapability to manage one’s own affairs so that waste and suffering are inevitable. A person who wanted to liquidate his entire estate and give it to “Christ is the Answer” may properly be found to be incompetent and a conservator appointed. Matter of Langford’s Estate, 50 Ill. App. 3d 623, 7 Ill. Dec. 574, 364 N.E.2d 735 (4th Dist. 1977).

One’s ability to manage his person does not resolve itself upon the question of whether the individual can accomplish tasks without assistance but rather whether the individual has the capability to take care and intelligently direct that all his needs are met through whatever device is reasonably available under the circumstances. Some of the actions which indicate the ability to care for one’s own needs include the appointment of an attorney-in-fact and the selection of a nursing home. The unsubstantiated opinions of witnesses that a person was not capable of taking care of himself or his affairs, without any reasons given for such conclusions will not support an adjudication of incompetency. Matter of McPeak’s Estate, 53 Ill. App. 3d 133, 11 Ill. Dec. 349, 368 N.E.2d 957 (5th Dist. 1977).

The extremes that reviewing courts will go to uphold the order of the trial court refusing to appoint a guardian for the estate and person is Galvin’s Estate v. Galvin, 112 Ill. App. 3d 677, 68 Ill. Dec. 370, 445 N.E.2d 1223 (1st Dist. 1983), wherein the alleged incompetent had strokes, had a pet black widow spider, believed he could fire by pointing his finger, and that he was a coworker with the Shah of Iran.

Although a person may be disabled in the statutory sense of not being fully able to manage her person, a guardian of her person is not permissible or appropriate if that person is capable of making and communicating responsible decisions concerning the care of her person, even though the appointment of a guardian of her estate is appropriate. The adjudication of disability is a uniquely factual determination. It is to be made by the trial court. It is not to be disturbed upon review unless the trial court’s findings are against the manifest weight of the evidence. In re Estate of Hickman, 208 Ill. App. 3d 265, 153 Ill. Dec. 31, 566 N.E.2d 881 (4th Dist. 1991).

20 Ill. Prac., Estate Planning & Admin. § 279:4 (4th ed.)

§ 35:4. Appointment

After compliance with statutory procedures regarding a hearing and notice to the respondent, a court must appoint a plenary guardian of the person or the estate, or both, of one adjudged to be a disabled person if the court finds that limited guardianship will not provide sufficient protection for the disabled person, his or her estate, or both.1 A plenary guardian is one who has the general care and control of the person and estate of a ward.2 A guardian may also be appointed for a limited purpose if the court finds that guardianship is necessary for the protection of the disabled person, his or her estate, or both.3 The guardian of the estate of a ward need not participate in or review the prosecution of an action on behalf of the ward where the attorney’s fees will be determined solely on a contingency basis.4

The justification for the appointment of a guardian is founded primarily on the incapability of managing one’s person or estate, and not on the cause of that incapability.5 The purpose ofappointing a guardian for a disabled person is to protect that person from personally wasting his or her estate or allowing others to do so.6 The question is not whether the person can accomplish specific tasks, but rather whether the person has the capability to take care of himself or herself, or intelligently direct that his or her needs are met through whatever device is reasonably available under the circumstances.7 It is not imperfection of mentality per se which justifies the appointment of a guardian, but rather the inability to manage one’s person or estate due to that imperfection of mentality.8 Thus, a trial court errs when it appoints a guardian over the respondent’s person after adjudicating the respondent a disabled person within the meaning of the Probate Act of 1975 where the respondent is able to manage his or her own person, even though the respondent’s lifestyle is eccentric.9

Where the court has the statutory authority to adjudicate a person as a disabled person and to appoint a guardian, the court’s failure to follow the statutory procedure in making the adjudication could render the order voidable.10 However, the failure to follow statutory requisites does not render the order void from the outset.11
Footnotes

755 ILCS 5/11a-12(b).

In re Estate of Steinfeld, 158 Ill. 2d 1, 196 Ill. Dec. 636, 630 N.E.2d 801 (1994) (sibling had standing to challenge disability and guardianship order).

In re Estate of Byrd, 227 Ill. App. 3d 632, 169 Ill. Dec. 772, 592 N.E.2d 259 (1st Dist. 1992).

In re Guardianship of Austin, 245 Ill. App. 3d 1042, 185 Ill. Dec. 852, 615 N.E.2d 411 (4th Dist. 1993).

Appointment of a limited guardian restricted to the investment of the respondent’s inheritance is proper, where the respondent does not lack all capacity to understand or manage day-to-day financial needs. Estate of Barr, 142 Ill. App. 3d 428, 96 Ill. Dec. 781, 491 N.E.2d 1241 (1st Dist. 1986).

755 ILCS 5/11a-18(c).

In re Stevenson’s Estate, 44 Ill. 2d 525, 256 N.E.2d 766 (1970).

Matter of Estate of Kutchins, 169 Ill. App. 3d 641, 120 Ill. Dec. 114, 523 N.E.2d 1025 (1st Dist. 1988).

See Matter of McPeak’s Estate, 53 Ill. App. 3d 133, 11 Ill. Dec. 349, 368 N.E.2d 957 (5th Dist. 1977); In re Dunning, 211 Ill. App. 633, 1918 WL 1982 (2d Dist. 1918), Leefers v. People ex rel. Leefers, 123 Ill. App. 634, 1906 WL 1592 (3d Dist. 1906).

In re Stevenson’s Estate, 44 Ill. 2d 525, 256 N.E.2d 766 (1970); Galvin’s Estate v. Galvin, 112 Ill. App. 3d 677, 68 Ill. Dec. 370, 445 N.E.2d 1223 (1st Dist. 1983).

Estate of Barr, 142 Ill. App. 3d 428, 96 Ill. Dec. 781, 491 N.E.2d 1241 (1st Dist. 1986).

Estate of Steinfeld, 233 Ill. App. 3d 715, 175 Ill. Dec. 12, 599 N.E.2d 1026 (1st Dist. 1992), judgment aff’d in part, rev’d in part on other grounds, 158 Ill. 2d 1, 196 Ill. Dec. 636, 630 N.E.2d 801 (1994).

Estate of Steinfeld, 233 Ill. App. 3d 715, 175 Ill. Dec. 12, 599 N.E.2d 1026 (1st Dist. 1992), judgment aff’d in part, rev’d in part, 158 Ill. 2d 1, 196 Ill. Dec. 636, 630 N.E.2d 801 (1994).

2 Horner Probate Prac. & Estates § 35:4

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