dissenting:
I respectfully dissent. I would reverse the decision of the trial court, recognize the continued validity of the power of attorney granted by Mrs. Doyle, and remand for further proceedings.
Prior to 1987, when a person who had granted a power of attorney became incompetent, the power of attorney was automatically revoked. The reasoning was that only a competent person could grant a power of attorney or continue it in effect. Article II of the Power of Attorney Act, the Durable Power of Attorney Law (755 ILCS 45/2 — 1 through 2 — 11 (West 2004)), was enacted to change that rule. The law recognizes it is important that “each individual has the right to appoint an agent to deal with property or make personal and health care decisions for the individual.” 755 ILCS 45/2 — 1 (West 2004). That right “cannot be fully effective unless the principal may empower the agent to act throughout the principal’s lifetime, including during periods of disability.” 755 ILCS 45/2 — 1 (West 2004). The decision of a competent principal to appoint an agent cannot be overcome by simply appointing a guardian of the person’s estate. Absent a special court order under section 2 — 10, “a guardian will have no power, duty[,J or liability with respect to any property subject to the agency.” 755 ILCS 45/2 — 10 (West 2004).
Before a court may supersede the principal’s decision to appoint an agent, a petition must be filed and notice given. 755 ILCS 45/2 — 10 (West 2004). The court must then find that “the principal lacks the capacity to control or revoke the agency” and either that “the agent is not acting for the benefit of the principal” or “that the agent’s action or inaction has caused or threatens substantial harm to the principal’s person or property in a manner not authorized or intended by the principal.” 755 ILCS 45/2 — 10 (West 2004). Only after those findings have been made may the court “order a guardian of the principal’s person or estate to exercise any powers of the principal under the agency” or order the guardian to revoke the agency, or enter other orders as the court deems necessary to provide for the best interests of the principal. 755 ILCS 45/2 — 10 (West 2004).
The whole idea of the Durable Power of Attorney Law is that the decision of a competent principal to appoint an agent should not be easily overcome. The fact that the court would not have selected the agent selected by the principal is irrelevant; what is important is what the principal thought best, not what the court thinks is best. The legislature would not have enacted the Durable Power of Attorney Law if the solution was the appointment of a guardian of the estate; guardians of the estate could be appointed before the Durable Power of Attorney Law was enacted. The suggestion that whenever a guardian of an estate is appointed any existing durable power of attorney is revoked is contrary to the spirit and the letter of the Durable Power of Attorney Law.
A court may appoint a guardian of an estate when it finds that the ward is incapable of managing her estate and it is in the best interests of the ward that the petitioner be appointed. More is required before a power of attorney may be superseded. It is not enough, when a power of attorney has been granted, that the court thinks someone else could do a better job. Cf. Bania, 130 Ill. App. 3d at 40, 473 N.E.2d at 492 (in guardianship cases, a disabled person’s personal preference is outweighed by what the court thinks is in the disabled person’s best interests). To overcome a power of attorney, the court must make a specific finding that “the agent is not acting for the benefit of the principal” or “that the agent’s action or inaction has caused or threatens substantial harm to the principal’s person or property in a manner not authorized or intended by the principal.” 755 ILCS 45/ 2 — 10 (West 2004). No such finding was made in the formal order entered in this case. In its oral comments the court stated that “Rose Marie simply wore out” and “[s]he has done her part, and it is now someone else’s turn.” The court treated this like any other guardianship case and did not consider whether the facts met the higher standard necessary to overcome a power of attorney.
Petitioners attempted to overcome the power of attorney, not by presenting a petition under section 2 — 10, but by having Mrs. Doyle sign a revocation of the power of attorney and then arguing that an incompetent person can revoke a durable power of attorney. By definition, incompetent persons are incapable of taking any legal action. It is not necessary for the statute to repeat that obvious fact. Even looking at the statute, the statute’s specific provision that a health care power of attorney “may be revoked by the principal at any time, without regard to the principal’s mental or physical condition” (755 ILCS 45/4 — 6 (West 2004)), makes it clear that agencies to deal with property, where there is no similar provision, cannot be so revoked. Likewise, the inclusion of a specific procedure for the revocation of agencies to deal with property under section 2 — 10 indicates that a durable power of attorney cannot be destroyed by simply handing an incompetent a piece of paper to sign. Despite the specific requirements of section 2 — 10, there was no petition filed in this case, no notice, and no findings.
Courts often deal with situations where an elderly person is cared for by a child living in her community while other children live at a distance. Sometimes the stress of day-to-day living and contact causes the elderly person to prefer the children she seldom sees over her caretaker. On the other hand, sometimes the caretaker takes advantage of the relationship. The language of section 2 — 10, however, is interesting. It is not enough to revoke a durable agency that there is harm to the principal’s person or property. To revoke there must be substantial harm to the principal’s person or property “in a manner not authorized or intended by the principal.” 755 ILCS 45/2 — 10 (West 2004). Sometimes the principal intends for the child who provides her care to receive more than the children at a distance. An infinite variety of fact situations is possible. It is not clear what the situation is here. The trial court must determine whether there is a basis for setting aside the power of attorney under section 2 — 10. Simply appointing a guardian does not do so.