dissenting:
The majority holds that a plenary guardian lacks standing to initiate a dissolution-of-marriage proceeding because the action is too personal to fall within the statute governing guardians for disabled adults. (Ill. Rev. Stat. 1985, ch. 110½, pars. 11a—1 through 11a—23.) It reads the statute as authorizing a guardian to bring suits only in regard to financial matters. In reaching its conclusion, the majority stresses that most foreign jurisdictions preclude guardians from maintaining dissolution-of-marriage actions absent statutory authorization. Because the court views the Illinois statute as silent in this regard, and because on the two occasions in which the court reached this issue it adopted the position of most foreign jurisdictions (Pyott v. Pyott (1901), 191 Ill. 280; Iago v. Iago (1897), 168 Ill. 339), my colleagues have determined that guardians may not institute dissolution actions on behalf of their wards.
The majority’s interpretation of the statute is too restrictive. According to the statute, the guardianship is to be utilized to “protect [the ward] from neglect, exploitation, or abuse” (Ill. Rev. Stat. 1985, ch. 110½, par. 11a—3). In addition, both the statute and our case law have always held that “the primary consideration is the best interest of the incompetent.” (Kinnett v. Hood (1962), 25 Ill. 2d 600, 602; Ill. Rev. Stat. 1985, ch. 110½, par. 11a—18.) If the initiation of a legal proceeding though personal can be shown to be beneficial to the maintenance and welfare of the ward, the court ought to allow it. By dismissing this action before determining whether the claim alleged was in the best interest of the ward, the circuit court has avoided its obligation to keep the interest of the ward paramount.
Other jurisdictions have recognized that guardians have the authority to make personal decisions on the ward’s behalf. (See Strunk v. Strunk (Ky. 1969), 445 S.W.2d 145 (authority to seek a renal transplant); In re Guardianship of Roe (1981), 383 Mass. 415, 421 N.E.2d 40 (authority to sterilize a mentally incompetent woman); In re Conroy (1985), 98 N.J. 321, 486 A.2d 1209 (authority to withdraw life supports).) Recently, in In re Estate of D.W. (1985), 134 Ill. App. 3d 788, 791, our appellate court held that a guardian is vested with broad authority to act in the best interest of a ward and could consent to an abortion for her mentally retarded ward even when the abortion was not necessary to protect the ward’s life or health. By allowing guardians to make such decisions regarding dissolution actions, a court preserves “the dignity and worth of such a person [an incompetent] and affords to that person the same panoply of rights and choices it recognizes in competent persons.” Superintendent of Belchertown State School v. Saikewicz (1977), 373 Mass. 728, 746, 370 N.E.2d 417, 428.
The two Illinois cases on which the majority relies in holding that a guardian lacks standing to initiate a dissolution action (Pyott v. Pyott (1901), 191 Ill. 280; Iago v. Iago (1897), 168 Ill. 339) were written during a time when divorces were relatively infrequent and much more difficult to obtain (see Ill. Rev. Stat. 1985, ch. 40, par. 401(2) (irretrievable breakdown of marriage now grounds for divorce)). Denying a guardian standing based on these antiquated case precedents is, in my judgment, an overly narrow reading of the statute that is neither in the best interest of the ward nor the public. I would therefore hold that the court should entertain the guardian’s petition and perform its statutory obligation to determine whether a dissolution of marriage is in the best interest of the ward.