concurring in part, and dissenting in part:
I concur in parts I, II, and III of the opinion and concur in the results reached in part IV.
In addition to seeking termination of the conservatorship, Geppert made a series of allegations of improper conduct in administering the ward’s estate. A claim for $1800 for attorney fees is based upon his alleged preparation to “prosecute” those allegations by taking depositions and otherwise. It appears that neither the statute nor the case law support such claims. I dissent from part IV of the opinion insofar as it turns upon waiver of the claim and so implies that Geppert may have been entitled to any fees for such work.
The statute does not support the claim. Sections 11a — 20 and 11a — 21 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. IIOJ2, pars. 11a — 20, 11a — 21) provide the procedure. The former section authorizes “the filing of a petition by or on behalf of a disabled person” to terminate adjudication of a disabled person, revoke letters of guardianship, or modify the duties of the guardian.
Section 11a — 21(a) provides that “the court shall conduct a hearing on a petition” so filed. The section continues to provide that the court may appoint counsel for the ward, and if the latter’s interest will be best served shall appoint counsel upon the ward’s request, and provides that the court may allow the guardian ad litem and counsel so appointed reasonable compensation.
The provisions of the latter section rationally require that the attorney, or guardian ad litem, appointed by the court, shall conduct the proceedings necessary to resolve matters raised in the petition so filed. Taken together, the two sections reasonably mean that while a person “acting in behalf of a disabled person” may petition the court, that section does not bestow the status of a plaintiff or prosecutor upon that person to conduct the litigation and to be allowed fees therefor.
In In re Estate of Freund (1978), 63 Ill. App. 3d 1, 3, 379 N.E.2d 935, 936-37, the court stated:
“ ‘The duty of protecting estates is cast by the law upon those whom the law designates as their proper representatives, and it can not be tolerated that other parties shall involve them in the costs and expenses of litigation, under the pretext that the estate will thereby be benefited’ (Ex parte Allen (1878), 89 Ill. 474, 475, 476.)”
Upon this record, Geppert had not established that he had procured any benefit or enhanced the value of the ward’s estate within the context of In re Estate of Freund (1978), 63 Ill. App. 3d 1, 379 N.E.2d 935. There, the respective estates of a husband and wife were without funds for closing. Attorneys acting for a co-executor of the husband’s estate, who was also a daughter concerned with the wife’s estate, had liquidated assets and procured the closing of the two estates. The trial court found that the services had benefited each of the estates, and ordered payment to the attorneys “its portion of the fees to be awarded from the estate.” It thus appears that the particular services established were to be paid as a part of all of the attorney fees awarded for administering the estates. The court said:
“Where legal services are not in the interest of the estate, counsel fees must be rejected. (In re Estate of Lipchik (1975), 27 Ill. App. 3d 331, 326 N.E.2d 464; In re Estate of Breault (1965), 63 Ill. App. 2d 246, 211 N.E.2d 424.) However, where the heirs’ action against the executors and trustees of an estate enhance the value of the estate, the heirs are entitled to have their attorneys’ fees paid from the estate; the sum saved being an important factor to be used in determining the amount of the award. (See Levi v. Stern (1944), 324 Ill. App. 82, 57 N.E.2d 228 (abstract).) The amount of the award is not an issue here and therefore we offer no opinion on it.” 63 Ill. App. 3d 1, 3, 379 N.E.2d 935, 937.
While Geppert has filed allegations of misconduct by the respective conservators, this record does not disclose any attorney fees fixed for services to that estate, and would result in a piecemeal consideration of fees by the court. There is a complete absence of proof of the alleged misconduct, and nothing of record establishes enhancement of value, or other benefit, to the estate by reason of such allegations. In such context, an award of fees to Geppert is premature, at best.
I would affirm for such reasons.