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duties include providing for the ward’s “support, care, comfort, health, education and maintenance, and
such professional services as are appropriate.” Section 11a-18 specifies the duties to include “the care,
management and investment of the estate.” Drews concluded that because filing for dissolution was not
specifically set forth therein, it was not permissible.

In overturning its prior decision, the court in Karbin reviewed cases rendered after Drews. Three
years after Drews, the Supreme Court had abandoned the notion that powers which fall outside the
enumerated list must be deemed prohibited. In In re Estate of Longeway, 133 Ill.2d 33 (1989), the court
read § 11a-17 expansively enough to authorize a plenary guardian to make end-of-life decisions regarding
life-sustaining measures, a decision upheld in In re Estate of Greenspan, 137 Ill.2d 1 (1990). Both
decisions relied on a notion of “implied authority” rather than requiring explicit authority for guardians.

In confirming the “implied authority” analysis, Karbin stated that “[b]y construing the Probate Act to
prohibit a guardian from being able to seek permission from the court to bring a dissolution action on
behalf of the ward, we would be improperly carving an exception to the broad powers of a guardian set
forth by the General Assembly.” The court found no compelling reason to prevent a guardian from
seeking permission to institute a dissolution action since guardians already make inherently personal
decisions for a ward. Furthermore, the court reasoned, preventing a guardian from filing, responding to or
continuing a dissolution action places the ward in a potentially precarious situation, which could result in
abuse, neglect or exploitation at the hands of the competent spouse.

Court Reforms Marital Settlement Agreement Despite Language

The Appellate Court in In re Marriage of Bolte, 2012 IL App (3d) 110791, reformed a Marital
Settlement Agreement (“MSA”) in which the parties used the term “rehabilitative maintenance” and said it
was not modifiable for 14 years. In Bolte, the wife learned that she suffered from myasthenia gravis, a
progressive disabling disease, seven years prior to the parties’ separation. The parties amicably resolved
the economic issues between themselves in a written MSA which was incorporated into the dissolution
judgment. The parties agreed to a monthly set amount of maintenance, which was reviewable up to the
husband’s retirement. The MSA also included a waiver for all other claims arising out of the marriage,
specifically referring to maintenance.

Fourteen years after dissolution, the husband retired and sought to have the maintenance obligation
terminated. The trial court terminated the husband’s maintenance obligation and prevented the wife from
receiving “permanent maintenance” per the waiver language in the MSA. The wife appealed.

The appellate panel reversed, finding that neither party could have reasonably believed it would take
the wife nearly 20 years to rehabilitate. The court said the “trial court’s recitation of the definition of
‘rehabilitative’ is unpersuasive” and reasoned that labeling a maintenance award rehabilitative does not
make it “a foregone conclusion that it is rehabilitative when it otherwise bears all the hallmarks of
traditional permanent maintenance.” Despite the language and the stated term, the court found that the
parties had essentially described and agreed to a permanent maintenance award.

This case is illustrative of the need for the practitioner to fully understand the distinctions between
permanent and rehabilitative maintenance and to be aware of the need to carefully craft the marital
settlement agreement to achieve the goal at hand. Using terminology without more is insufficient.

- Rebecca L. Reinhardt, Rreinhardt@lotsharp.com, 618-242-0246

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