specially concurring:
I specially concur because while I agree that we are bound by the supreme court’s decision in In re Marriage of Drews, 115 Ill. 2d 201 (1986), I would emphasize the strong legal and public policy reasons for allowing a disabled adult’s plenary guardian to continue a dissolution of marriage action originally filed by the disabled adult.
I would echo the dissent in Drews, which argued that such guardians should be allowed to initiate, let alone maintain, a dissolution of marriage action on the disabled adult’s behalf. According to that dissent, a marital dissolution action is not too personal to fall within the guardian statute (755 ILCS 5/11a—1 et seq. (West 1996)). The purpose of a plenary guardianship is to preserve the disabled adult’s best interests and to protect him or her from “neglect, exploitation, or abuse.” 755 ILCS 5/11a—3(b) (West 1996). Not allowing a plenary guardian to maintain a marital dissolution action originally filed by the disabled adult does not serve these goals. “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.’ ” Drews, 115 Ill. 2d at 208 (Simon, J., dissenting), quoting Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 746, 370 N.E.2d 417, 428 (1977).
Also, the Drews dissent questioned the authority upon which the majority relied. “The two Illinois cases on which the majority relie[d] in holding that a guardian lacks standing to initiate a dissolution action [(Pyott v. Pyott, 191 Ill. 280 (1901); Iago v. Iago, 168 Ill. 339 (1897))] were written during a time when divorces were relatively infrequent and much more difficult to obtain.” Drews, 115 Ill. 2d at 208 (Simon, J., dissenting). The dissent stated that the majority used “an overly narrow reading of the [guardian] statute that is neither in the best interest of the ward nor the public.” 115 Ill. 2d at 209 (Simon, J., dissenting).
In addition, I agree with the Drews dissent that maintaining a dissolution action is no more personal than making medical decisions. “[I]n these days of termination of life support, tax consequences of virtually all economic decisions, no-fault dissolutions and the other vagaries of a vastly changing society, we think an absolute rule denying authority is not justified nor in the public interest.” In re Marriage of Gannon, 104 Wash. 2d 121, 124, 702 P.2d 465, 467 (1985). As petitioner pointed out in his appellee’s brief, the Probate Act specifically authorizes a guardian to act as a surrogate decision maker under the Health Care Surrogate Act. 755 ILCS 5/11a—17(d) (West 1996). The Health Care Surrogate Act allows the surrogate to authorize the withdrawal of medical treatment. 755 ILCS 40/20 (West 1996). Thus, I would find the argument that initiating or maintaining a dissolution action on a ward’s behalf is too personal to fall within the guardian statute to be unpersuasive.
It is important to note that of the 29 jurisdictions addressing the issue, 17 allow a guardian to institute a dissolution proceeding on the ward’s behalf, and some of those stipulate that the ward must be able to exercise reasonable judgment as to his or her personal decisions and to unequivocally express a desire for dissolution. Ten of the twenty-nine jurisdictions, including Illinois, do not allow a guardian to institute dissolution proceedings. Most of those jurisdictions have not considered the issue since the 1950’s. Two of the twenty-nine jurisdictions are undecided on the issue. Certainly Drews no longer reflects the majority view.
Moreover, allowing a guardian to maintain such dissolution actions preserves equity between the disabled adult and the spouse because otherwise, “ ‘the competent party is vested with absolute, final control over the marriage.’ ” In re Marriage of Ruvalcaba, 174 Ariz. 436, 443, 850 P.2d 674, 681 (App. 1993), quoting Gannon, 104 Wash. 2d at 124, 702 P.2d at 467. The court in Ruvalcaba was also concerned about “leaving an incompetent spouse captive to the whims of the competent spouse, and the specter of potential for abuse.” Ruvalcaba, 174 Ariz. at 443, 850 P.2d at 681. In Gannon, the court also addressed the question, as in this case, of whether the guardian had standing to seek a marital dissolution on behalf of a legally incompetent spouse. The court set forth an equitable method of resolving the issue:
“In cases in which the guardian *** believes a dissolution to be in the best interests of the incompetent ward, such authority must be sought specifically by a special petition for that purpose. The court must then hold a hearing to obtain evidence of what action is in the best interests of the ward. The discretion of the trial court will test these matters, again with great emphasis upon the interests of the ward and the necessities and interests of the competent spouse.” Gannon, 104 Wash. 2d at 125, 702 P.2d at 467.
Finally, I would emphasize that although we are bound by the decision in Drews, the facts of this case illustrate the need for a change in the law to allow plenary guardians to maintain marital dissolution actions on their wards’ behalf. The record shows that petitioner had expressed his desire for a divorce for approximately 14 months before he became disabled. In addition, there is evidence that, even after being deemed disabled, he retained some mental capacities as well as the ability to live on his own. The result we are required to reach leaves petitioner powerless over his own life.