dissenting:
The majority opinion makes bad law. And it does so under great handicaps. First, it subverts State statutes. And second, it ignores the settled legal procedures which have existed since the mind of man runneth not to the contrary. Although the opinion purports to rely on seven case citations, several sections of the Illinois Probate Act of 1975, and an article from the Chieago-Kent Law Review, not one authority cited stands for the proposition that the guardian ad litem appointed by the trial court is not entitled to be paid.
The facts are fairly set forth in the majority opinion. In broad outline, I repeat them here. Lucille Prior, age 75, suffered a stroke, resulting in paralysis of her right side and loss of speech. Kathryn Hufnagle, a speech therapist, petitioned the court to have Lucille Prior declared a disabled person and to have the public guardian appointed as guardian of her estate. The trial court named Dorian B. LáSaine, an attorney, as guardian ad litem in preparation for the hearing on the guardianship. Mrs. Prior hired her own attorney, resisted the proceedings, and succeeded in having the proceedings terminated without the issuance of letters of guardianship. The guardian ad litem, for his part, acted in his appointive capacity, appeared in court and fulfilled the usual duties of such office. "At the conclusion of the proceedings, the trial court fixed the guardian ad litem fees at $300, the public guardian expenses at $652.20 and incidental court costs of $86.20, all of which were taxed to Mrs. Prior. She resisted the taxing of these costs, and took an appeal to our court. No response was filed for the guardian ad litem or the public guardian.
I concur with that part of the majority opinion which disallows $652.50 taxed as costs for the public guardian. The public guardian, after all, never served in this case and is not entitled to compensation. I most strongly dissent, however, from that portion of the majority opinion which disallows the $300 awarded to the guardian ad litem to be taxed as costs along with the $86.20 miscellaneous costs.
From time immemorial, trial courts have designated guardian ad litems to be appointed in proceedings where necessary to prosecute or defend a suit on behalf of a party incapacitated by infancy, mental or physical state or otherwise. The guardian ad litem serves as an officer of the court and as an aid to the court to ensure that the rights of the alleged incapacitated person are fully protected. Such appointive powers are not only part of the traditional and historical inherent powers of the courts, but they are further alluded to and authorized in numerous Illinois statutes. It has also been customary and traditional to compensate the guardian ad litem from the estate of the incapacitated person since the services are rendered for that person’s benefit.
And, in the instant case, the trial court is mandated (“shall appoint”) to appoint a guardian ad litem-, and to see to it (“shall enter an order”) that the guardian ad litem is compensated. (Ill. Rev. Stat. 1981, ch. 100½, pars. 11a—10(a), (c).) If the respondent is unable (not unwilling) to pay, then the court shall order the State to pay.
An ironical result of the majority opinion is that a guardian ad litem who succeeds in having incompetency or related proceedings terminated cannot be paid. Thus, the majority opinion, in one sense, is calculated to penalize success and reward failure. More significantly, however,,, it simply ignores the role and purpose of the guardian ad litem, who is designated to protect the legal rights of the incapacitated person in the litigation at hand. In some situations, that might involve supporting the petition; in other situations, resisting.
In the instant case, there is no basis in the record for finding that the trial court abused its discretion in appointing Mr. LaSaine as guardian ad litem. There is no basis for finding that he did not fully, fairly and adequately discharge his appointive duties. There is no basis for finding that the awarded fee of $300 to be taxed as costs is anything but reasonable. In short, there is no basis for reversing the trial court in this regard.
The integrity of the judicial process demands that appointed guardian ad litems be utilized in certain cases. And, if guardian ad litems are to be utilized, they must be paid. Involuntary servitude, after all, was abolished many years ago. The instant majority opinion, in ruling otherwise, flies in the face of established law.
Accordingly, I dissent.