dissenting:
During the last undignified days in the life of Zella Burgeson, the public guardian, Patrick T. Murphy, was appointed as her temporary guardian. Shortly thereafter she died and a probate estate was opened. The probate estate was subsequently closed without, however, any notice to the public guardian, who had requested notice. When the public guardian learned that the estate had been closed, he filed a petition pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—1401) to vacate the order closing the estate. In the petition, Murphy alleged that certain orders had been obtained by a fraud on the court. That petition was denied on the grounds that Murphy had no standing in the probate estate since he represented Zella Burgeson in the guardian’s estate and further that his petition was untimely.
Section 2 — 408(a) of the Code of Civil Procedure governs intervention as of right. (Ill. Rev. Stat. 1985, ch. 110, par. 2—408(a).) That section is to be liberally construed. (Standard Bank & Trust Co. v. Village of Oak Lawn (1978), 61 Ill. App. 3d 174, 177, 377 N.E.2d 1152.) Section 2—408(a) provides in part:
“Upon timely application anyone shall be permitted as of right to intervene in an action: *** (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action.” (Ill. Rev. Stat. 1985, ch. 110, par. 2-408.)
I believe that Murphy is entitled to intervene because he has an interest, the representation by the executor was inadequate, and Murphy is bound by the final order closing the estate.
A guardianship is designed to protect a disabled person from “neglect, exploitation, or abuse.” (Ill. Rev. Stat. 1985, ch. 110½, par. 11a—3(b).) It is the duty of the guardian to “appear for and represent the ward in all legal proceedings.” (Ill. Rev. Stat. 1985, ch. 110½, par. 11a—18(c).) While Murphy’s interest was in the guardian’s estate, the guardian’s estate became a part of the decedent’s estate when Zella Burgeson died. The bills for the guardian’s estate, including the fee for the guardian himself, were paid through the decedent’s estate. In order to understand Murphy’s interest in protecting the guardian’s estate, it is necessary to expand upon the facts.
On January 17, 1983, Sheldon Kirshner, an attorney, had Zella Burgeson, a widow nearly 90 years of age, sign a very broad power of attorney. He notarized her signature. Seven months prior to the date on which Kirshner obtained the power of attorney, the condominium association for the building where Zella Burgeson lived wrote a letter to her brother, John Hounsom, who resided in Missouri. In that letter dated May 31, 1982, the president of the board of managers of the association said that Hounsom should be informed that there had been increasing problems with Zella Burgeson that were potentially serious. The letter stated that in the opinion of the board of directors, Zella Burgeson had become very senile, so much so that if her neighbors did not shop for her and look after her, she could not survive. Specific examples were given. She continually burned her food and neighbors had to come in when they smelled the smoke. She would leave food unused to the extent that it rotted or spoiled. She constantly asked people what day it was and what month it was. The letter expressed concern that Zella Burgeson was vulnerable to being defrauded of money and goods, and concluded by suggesting that if the family was unable to take care of the matter, the association would turn to the public guardian.
Two years after that first letter and 18 months after Kirshner had obtained the power of attorney, the association again wrote a letter, but this time to Kirshner. The letter, dated June 11, 1984, was accompanied by a statement disclosing that one of the unit owners had witnessed Zella Burgeson nude in the lobby of the building, where she had apparently just urinated on the carpeting. The apartment, as described by the neighbor, was shocking in that it was littered with dirty dishes and overflowing garbage on all of the floors and rooms, a urine-saturated sheet was lying in the middle of the living-room floor, and the walk-in closet in the bedroom was piled with at least 41/2 feet of clothing and bed linens.
Previously, Kirshner had hired a companion for Zella Burgeson, Janet Collins, who took approximately $4,000 from Burgeson’s accounts without authorization. According to Murphy, criminal proceedings against Janet Collins were dismissed at the insistence of Kirshner. In 1983 and 1984, pursuant to the power of attorney, Kirshner paid himself approximately $11,000 in legal fees.
On August 23, 1984, Patrick Murphy, the public guardian, was appointed temporary guardian of the person and estate of Zella Burgeson. He was specifically empowered to investigate and determine the extent of her assets and to take legal action to protect them. Zella Burgeson died seven weeks later on October 10, 1984, at the age of 90. On February 5, 1985, four days after having received a telephone call from a beneficiary concerning a $20,000 bill from Kirshner’s attorney, John Coleman, the public guardian requested the circuit court, which was probating the estate of Zella Burgeson, to appoint a special administrator to look into the circumstances under which the attorneys for the estate of Zella Burgeson were acting and how much they were charging. On February 13, 1985, the court appointed John A. Doyle as special administrator to determine whether there was any basis for allegations of the public guardian and to report back to the court.
The executor of the estate, John Hounsom, who was the brother of Zella Burgeson and the beneficiary of 75% of her estate, requested that the special administrator be dismissed. In his request, he stated that his sister had been in excellent health and that he was satisfied with Kirshner. Preprinted affidavits which contained blank spaces filled by the affiants were also submitted by the other beneficiaries. They recited that Kirshner was “doing a splendid job.” On March 8, 1985, the circuit court ordered the special administrator “not to act until further order of court.” The special administrator had devoted only several hours to the investigation prior to the suspension of his activities.
Subsequently, a second set of affidavits was submitted in support of the final account. Hounsom again expressed his satisfaction with Kirshner’s services and fees. He stated further that he believed that Zella Burgeson still would be alive if Patrick Murphy had not interfered with the family. He characterized Murphy as being deranged, a fiend, and a madman. He admitted that his 90-year-old sister was slowing up but maintained that she was not senile and that she saw to her own needs. Hounsom suggested that the story about the conditions at Zella Burgeson’s home was a lie designed by the police to cover the fact that they had made an illegal entry. The form affidavits of the other beneficiaries expressed satisfaction with the services and fees of Kirshner and Coleman. The affidavits recited that Kirshner did not commit any improprieties. All of the beneficiaries’ affidavits were replete with hearsay, including references to possible poisoning of Zella Burgeson. Some of the affiants added handwritten disclaimers to their affidavits stating that their affidavits were premised upon hearsay. Murphy filed a complaint with the Attorney Registration and Disciplinary Commission.
The circuit court relied upon the affidavits in approving the final account and closing the estate on October 18, 1985, without notice to Murphy. Kirshner previously had informed the trial court on September 23, 1985, that notice to Murphy was not necessary, even though Murphy had specifically requested notice on April 10, 1985. The final account reflected total receipts in the amount of $189,794.79, total disbursements in the amount of $85,540.68, and a net amount of $104,254.11 available for distribution to the beneficiaries. The disbursements included nearly $60,000 in attorney fees and costs for Kirshner and Coleman.
Also on October 18, 1985, the court entered another order which discharged the special administrator. That order recites, inaccurately, that the special administrator had “conducted a thorough investigation” and had “found no impropriety” on the part of Kirshner, Hounsom or any other person. The record discloses that there was no full investigation and no such finding by the special administrator, whose investigation was suspended by court order on March 8, 1985, after only several hours’ worth of work. Kirshner then presented the inaccurate order to the Attorney Registration and Disciplinary Commission. Murphy alleges that based upon that order the ARDC terminated its investigation.
Under the circumstances of this case, Murphy had the requisite interest for intervention. His interest was as guardian of the person and estate of the incompetent. As such, he was responsible for protecting her from neglect, exploitation, and abuse (Ill. Rev. Stat. 1985, ch. 110½, par. 11a—3(b)) and for representing her in all legal proceedings (Ill. Rev. Stat. 1985, ch. 110½, par. 11a—18(c)). Furthermore, the public guardian was specifically enjoined to investigate and determine the extent of her- assets and to take legal action to protect them. He uncovered enough evidence disclosing that Zella Burgeson’s assets needed to be protected. Kirshner had procured the power of attorney without any witnesses from a woman whose neighbors seven months earlier had characterized as very senile and vulnerable to fraud. Kirshner then paid himself $11,000 in fees while Zella Burgeson was still living, and he and Coleman then collected sizeable additional fees after she died. Clearly, Zella Burgeson’s interests were not adequately protected because no one except the public guardian questioned these large fees. Although the majority opinion emphasizes that Hounsom and the other beneficiaries were satisfied with Kirshner, their satisfaction is belied by the hearsay-laden, preprinted form affidavits submitted by Kirshner on their behalf. This fiduciary duty to protect Zella Burgeson’s assets from dissipation continued following her death, because the guardian’s estate and the decedent’s estate were inextricably intertwined. Murphy’s bills and other bills incurred in the guardian’s estate were paid through the decedent’s estate. Kirshner received substantial fees in both estates, and he allegedly bilked both estates.
Murphy also satisfies the other requirements of the intervention statute. His interest was not adequately protected by the executor because no one questioned the fees charged by Kirshner and Coleman either before or after Zella Burgeson’s death. Murphy, of course, is bound by the judgment, which effectively disposed of the matters that he uncovered and forecloses him from taking any further action. Murphy’s request for the appointment of a special administrator was timely because it was made only four days after his office had received a telephone call concerning Coleman’s $20,000 bill. Murphy’s failure to file a formal petition to intervene pursuant to section 2— 408(e) (Ill. Rev. Stat. 1985, ch. 110, par. 2—408(e)) was harmless given his prior participation on the guardian’s estate, the intertwining of the guardian’s estate and the decedent’s estate, and the detailed written motion requesting the appointment of a special administrator.
In addition to satisfying the requirements for intervention, Murphy demonstrated due diligence in filing the section 2 — 1401 petition. On September 23, 1985, Kirshner informed the court that Murphy did not need to be notified of the final account, even though Murphy previously had specifically requested such notice. It was undisputed that Murphy was not given notice of the October 18, 1985, hearing date for the final account. Murphy received notice of the closing of the estate in January of 1986 when the Attorney Registration and Disciplinary Commission informed him that the proceedings against Kirshner were being dismissed and in February filed his section 2— 1401 petition to vacate the October 18, 1985, orders.
In denying Murphy’s section 2 — 1401 petition, the circuit court emphasized that it had no choice other than to do what it did since the executor and the other legatees were all satisfied. However, the duty of the court was to the estate to protect the wishes of the decedent; the duty of the court was not to the executor or the other legatees. See In re Estates of Rice (1979), 77 Ill. App. 3d 641, 649, 396 N.E.2d 298; In re Estate of Morgan (1980), 82 Ill. 2d 26, 411 N.E.2d 213.
Finally, the circuit court observed that it did not know whether Murphy had a valid claim or defense. The case should be remanded for consideration of this substantive aspect of Murphy’s section 2— 1401 petition.