NO. 4-04-1026

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JUSTICE McCULLOUGH delivered the opinion of the court:

The respondent, Rose Marie Doyle, appeals the order ofthe Sangamon County circuit court appointing petitioner JamesDoyle guardian of the person and petitioner Gary Eklund asguardian of the estate of Mary Rose Doyle (Mrs. Doyle). Weaffirm.

Respondent raises the following issues on appeal: (1)the judgment appointing the guardians is void because the temporary guardianship was extended past 60 days and the hearing forpermanent guardianship was not set within 30 days, which wascontrary to jurisdictional requirements; (2) the appointment ofthe guardian for the estate is void because a valid power ofattorney was in effect; (3) the trial court erred when it failedto strike the guardian ad litem's report; (4) the court erredwhen it refused to allow respondent to reopen her case and callMrs. Doyle as a witness; (5) the court erred when it allowedpetitioners' witnesses to testify after petitioners failed toproperly answer respondent's Supreme Court Rule 213 interrogatory; (6) the court erred when it allowed testimony and businessrecords into evidence without a proper foundation; and (7) thecourt abused its discretion by its appointment of petitioners asguardians.

On March 11, 2004, petitioners filed for temporary andpermanent guardianship of Mrs. Doyle. On March 12, 2004, thetrial court appointed petitioner James Doyle as the temporaryguardian of Mrs. Doyle's person and petitioner Gary Ecklund, Mrs.Doyle's son-in-law, as temporary guardian of her estate. Thecourt also appointed a guardian ad litem for Mrs. Doyle. OnMarch 19, 2004, respondent filed a petition, which was laterdenied, to revoke the temporary guardianship. On May 12, 2004,the court granted petitioners' request to extend the temporaryguardianships to June 24, 2004.

Over the course of five days between June and August2004, the trial court heard evidence on petitioners' request forguardianship. The court heard testimony from Mrs. Doyle'sfamily, care givers, friends and acquaintances, as well astestimony from a caseworker and an investigator from SeniorServices of Central Illinois, who investigated the allegations ofabuse to Mrs. Doyle. The court also received a prehearing reportand a posthearing report from the guardian ad litem recommendingthat petitioner Eklund be appointed guardian of Mrs. Doyle'sestate and that either petitioner James Doyle or John Doyle beappointed guardian of Mrs. Doyle's person.

On September 7, 2004, the trial court found Mrs. Doyledisabled and incapable of managing her own estate and person. The court appointed petitioner James Doyle as permanent plenaryguardian of Mrs. Doyle's person and petitioner Eklund as thepermanent plenary guardian of her estate. On October 1, 2004,respondent filed a motion for rehearing or to vacate the judgment. In November 2004, the court denied this motion. Thisappeal followed.

Respondent first argues the trial court's permanentguardianship order is void because petitioners' temporary guardianships were unlawfully extended past 60 days. Section 11a-4 ofthe Probate Act of 1975 (Probate Act) (755 ILCS 5/11a-4 (West2004)) states:

"The temporary guardianship shall expirewithin 60 days after the appointment or whenever a guardian is regularly appointed,whichever occurs first. Except pending thedisposition on appeal of an adjudication ofdisability, no extension shall be granted."

If the court erred in extending petitioners' temporary guardianships beyond 60 days, the question becomes whether this has anyeffect on the court's ultimate guardianship determination. RoseMarie fails to provide any authority why the extension of thetemporary guardianships makes the court's ultimate guardianshipdecision void. According to Illinois Supreme Court Rule341(e)(7) (Official Reports Advance Sheet No. 21 (October 17,2001), R. 341(e)(7), eff. October 1, 2001)), an appellant's briefshall contain:

"Argument, which shall contain the contentions of the appellant and the reasonstherefor, with citation of the authoritiesand the pages of the record relied on. *** Citation of numerous authorities in supportof the same point is not favored. Points notargued are waived and shall not be raised inthe reply brief, in oral argument, or onpetition for rehearing."

As a result, respondent forfeited this argument.

Respondent next argues the trial court's guardianshiporder is void because the guardianship hearing was not heldwithin 30 days of the filing of the guardianship petition. Theportion of the statute at issue states: "Upon the filing of apetition pursuant to [s]ection 11a-8, the court shall set a dateand place for hearing to take place within 30 days." 755 ILCS5/11a-10 (West 2004).

"The primary rule of statutory construction is toascertain and give effect to the intention of the legislature,and that inquiry appropriately begins with the language of thestatute." People v. Woodard, 175 Ill. 2d 435, 443, 677 N.E.2d935, 939 (1997). If the language of a statute is clear andunambiguous, we do not resort to other aids of statutory construction. Woodard, 175 Ill. 2d at 443, 677 N.E.2d at 939. While the language of this statute is clear that the court has 30days to conduct a hearing on a guardianship petition, the statuteis not clear on whether this 30-day requirement is mandatory ordirectory.

Our supreme court has stated that ordinarily when astatute uses the word "shall" it indicates a mandatory ratherthan a directory intent. Woodard, 175 Ill. 2d at 445, 677 N.E.2dat 940. However, this is not a rigid rule. Woodard, 175 Ill. 2dat 445, 677 N.E.2d at 940. Depending on the context of thestatutory provision and the drafters' intent, the statute may betreated as permissive. Woodard, 175 Ill. 2d at 445, 677 N.E.2dat 940.

We have stated that a universal formula for distinguishing between mandatory and directory provision does notexist. Cooper v. Department of Children & Family Services, 234Ill. App. 3d 474, 481, 599 N.E.2d 537, 542 (1992). It depends onthe intent of the legislature, "which is ascertained by examiningthe nature and object of the statute and the consequences whichwould result from any given construction." Cooper, 234 Ill. App.3d at 481, 599 N.E.2d at 542.

"Ordinarily a statute which specifiesthe time for the performance of an officialduty will be considered directory only wherethe rights of the parties cannot be injuriously affected by failure to act within thetime indicated. However, where such statutecontains negative words, denying the exerciseof the power after the time named, or where adisregard of its provisions would injuriouslyaffect public interests or private rights, itis not directory but mandatory.

***

Where, as here, a statute does not provide sanctions for failure to comply with theprovision in dispute, the requirement in thestatute may be interpreted as being merelydirectory rather than mandatory. [Citation.]If a provision of a statute states the timefor performance of an official duty withoutany language denying performance after aspecified time, it is directory. However, ifthe time period is provided to safeguardsomeone's rights, it is mandatory, and theagency cannot perform its official duty afterthe time requirement has passed." Cooper,234 Ill. App. 3d at 482, 599 N.E.2d at 542.

The statute at issue in this case does not contain anynegative language or provide for any sanctions or other consequences for failure to conduct the hearing within 30 days of thefiling of the petition. Further, we find a mandatory interpretation of this statute would be contrary to the purposes of theProbate Act, which is to provide for the best interests ofdisabled adults and would adversely affect disabled adults inneed of a guardian.

While respondent argues the statute should be given amandatory construction because Mrs. Doyle's rights are affectedby the guardianship, she does not make any arguments that Mrs.Doyle's rights were injuriously affected by the fact the guardianship hearing was not held within 30 days after the guardianship petition was filed.

Based on the above factors, we find the 30-day requirement in section 11a-10 of the Probate Act (755 ILCS 5/11a-10(West 2004)) for a guardianship hearing is directory and notmandatory. As a result, the trial court's guardianship order isnot void.

Respondent also argues the trial court's appointment ofa guardian for Mrs. Doyle's estate is void because Mrs. Doyleexecuted a document giving respondent power of attorney over Mrs.Doyle's property in February 1998. Respondent does acknowledgeshe received a letter purportedly from Mrs. Doyle revoking thepower of attorney. However, she argues that this letter was noteffective because Mrs. Doyle was incompetent when she signed theletter. Petitioners argue that section 2-5 of the Illinois Powerof Attorney Act (Power of Attorney Act) (755 ILCS 45/2-5 (West2004)) does not require a person to be competent to revoke apower of attorney.

We need not decide whether an incompetent individualcan revoke a power of attorney in this case, because we find thetrial court implicitly revoked respondent's power of attorneypursuant to section 2-10 of the Power of Attorney Act (755 ILCS45/2-10 (West 2004)). According to section 2-10 of the Power ofAttorney Act:

"Upon petition by any interested person(including the agent), with such notice tointerested persons as the court directs and afinding by the court that the principal lacksthe capacity to control or revoke the agency:(a) if the court finds that the agent is notacting for the benefit of the principal inaccordance with the terms of the agency orthat the agent's action or inaction hascaused or threatens substantial harm to theprincipal's person or property in a mannernot authorized or intended by the principal,the court may order a guardian of the principal's person or estate to exercise any powersof the principal under the agency, includingthe power to revoke the agency, or may entersuch other orders without appointment of aguardian as the court deems necessary toprovide for the best interests of the principal; or (b) if the court finds that theagency requires interpretation, the court mayconstrue the agency and instruct the agent,but the court may not amend the agency. Absent court order directing a guardian toexercise powers of the principal under theagency, a guardian will have no power,duty[,] or liability with respect to anyproperty subject to the agency or any personal or health care matters covered by theagency." 755 ILCS 45/2-10 (West 2004).

While petitioners did not file a specific petitionunder section 2-10, they did file a petition seeking guardianshipover Mrs. Doyle and all of the interested persons in this casehad knowledge that petitioners were asking to be guardians ofMrs. Doyle's person and estate. After numerous hearings wherethe trial court heard testimony from a variety of witnesses andreceived two reports from Mrs. Doyle's guardian ad litem, thecourt found Mrs. Doyle was a disabled person as defined inArticle XIa of the Probate Act of 1975 (755 ILCS 5/11a-1 through11a-23 (West 2004)) and incapable of managing her own estate andperson. Implicitly, the court found Mrs. Doyle lacked thecapacity to control or revoke the power of attorney. The courtalso found that respondent's original devotion to her motherturned into abuse. The court then granted petitioners the samepowers Mrs. Doyle had originally given to respondent. The courtstated:

"There were some things also said in [theguardian ad litem's] report that I believewere put as gently as possible when he talksabout the role Rose Marie Doyle has had inher [m]other's life, and [the guardian adlitem] says--and I want everyone here to hearthese words--no one involved in this matterhas minimized or has failed to appreciate theyears of dedicated loving service and carewhich Rose Marie Doyle has provided for Mrs.Doyle, but by her own testimony and in herown words, Rose Marie simply wore out. Thereis no reason why Rose Marie can not continueto be a loving positive force in her mother'slife during her remaining years. She shoulddo that now strictly as a daughter. Care andcustody and management of financial mattersshould not rest with Rose Marie. She has nowdone her part, and it is now someone else'sturn. That impressed me, those words andthat language. In fact, this entire documentdid impress me.

My obligation is to insure for [MaryRose] Doyle the best quality of life for herremaining years. Being able to see and visitwith her family and friends should be animportant part of that, and in the opinion ofthis [c]ourt[,] it is in the best interest ofMary Rose Doyle [that] her son, James, be the[g]uardian of her [p]erson, and her son, GaryEklund, [g]uardian of the [e]state.

Although the [c]ourt acknowledge[s] thetime and efforts Rose Marie has spent intaking care of the needs of her parents, itdoes appear there came a time when her devotion turned to abuse.

It also is this [c]ourt's opinion thatthere exists inconsistencies in the manner inwhich Rose Marie Doyle managed the funds andproperty of Mary Rose Doyle. That took placeover a number of years, and if permitted tocontinue would dissipate the assets of MaryRose Doyle. It is my further opinion [that]she would bankrupt her estate. This concernsthe [c]ourt. It does not appear that thebest interest of Mary Rose Doyle was theprimary concern of Rose Marie Doyle at thistime." (Emphasis added.)

The powers given to the guardian of the estate are setforth in section 11a-18 of the Probate Act (755 ILCS 5/11a-18West 2004)). These powers are also set forth with respect to apower of attorney in sections 3-3 and 3-4 of the Power of Attorney Act (755 ILCS 45/3-3, 3-4 (West 2004)). While not expresslystating it was following section 2-10 of the Power of AttorneyAct (755 ILCS 45/2-10 (West 2004)), the court implicitly met therequirements of section 2-10 and stripped respondent of herauthority as power of attorney and gave that power to petitionersJames Doyle and Gary Eklund.

Respondent next argues the trial court erred when itfailed to strike the guardian ad litem's report. In her initialbrief, respondent based her argument on the guardian ad litem'sfailure to (1) testify, (2) advise Mrs. Doyle of her rights, and(3) ask Mrs. Doyle's position with regard to the appointment of aguardian. However, in her reply brief, respondent acknowledgesMrs. Doyle was advised of her rights. In addition, the record isclear that the guardian ad litem did obtain Mrs. Doyle's positionwith regard to the appointment of a guardian.

The issue is whether the guardian ad litem's failure totestify pursuant to section 11a-10(a) of the Probate Act (755ILCS 5/11a-10(a) (West 2004)) necessitates the court striking hisreports. According to section 11a-10 (755 ILCS 5/11a-10(a) (West2004)), "[t]he guardian ad litem shall appear at the hearing andtestify as to any issues presented in his or her report." However, the statute does not state that a guardian ad litem'sreports should be stricken if he or she does not testify. Further, Rose Marie did not provide this court with any authorityor reasoning as to why the guardian ad litem's failure to testifynecessitated the trial court striking his reports. In addition,respondent does not cite where in the record she asked the courtto strike the reports during the guardianship proceeding. Further, it does not appear respondent ever asked to have theguardian ad litem testify before the court issued its guardianship decision, even though the guardian ad litem was present atevery hearing where testimony was taken. According to Rule341(e)(7) (Official Reports Advance Sheet No. 21 (October 17,2001), R. 341(e)(7), eff. October 1, 2001), a court of review isentitled to have issues clearly defined with pertinent authoritycited and coherent arguments presented or the inadequatelypresented argument is deemed forfeited. We find respondent'sargument forfeited.

Respondent next argues the trial court erred in denyingher request to reopen her case and call Mrs. Doyle as a witness. A court's decision whether to allow a party to reopen his or hercase to present additional evidence will not be disturbed unlessthe court abused its discretion. People v. Ford, 139 Ill. App.3d 894, 900, 488 N.E.2d 573, 577 (1985). Mrs. Doyle's attorneymade it clear that Mrs. Doyle did not want to attend the proceedings. Further, the trial court was aware of how Mrs. Doyle wouldtestify based on the guardian ad litem's prehearing report. Thecourt did not abuse its discretion in not allowing respondent toreopen her case and force Mrs. Doyle to come to court and testify.

Respondent next argues the trial court should not haveallowed petitioners' witnesses to testify because petitionersfailed to properly answer her interrogatory, which asked forwitness disclosures pursuant to Supreme Court Rule 213(f) (Official Reports Advance Sheet No. 8 (April 17, 2002), R. 213(f),eff. July 1, 2002). From the record it appears that respondentdid not technically comply with Supreme Court Rule 201(k) (166Ill. 2d R. 201(k)) and Supreme Court Rule 219 (166 Ill. 2d R.219) before asking the court to bar petitioners' witnesses.However, even if we were to find respondent complied with Rules201(k) (166 Ill. 2d R. 201(k)) and 219 (166 Ill. 2d R. 219) inasking for sanctions, and petitioners violated Rule 213(f)(Official Reports Advance Sheet No. 8 (April 17, 2002), R.213(f), eff. July 1, 2002) by failing to answer respondent'switness disclosure interrogatory, respondent again forfeited thisargument pursuant to Rule 341(e)(7) (Official Reports AdvanceSheet No. 21 (October 17, 2001), R. 341(e)(7), eff. October 1,2001).

Our supreme court has stated:

"In determining whether the exclusion of awitness is a proper sanction fornondisclosure, a court must consider thefollowing factors: (1) the surprise to theadverse party; (2) the prejudicial effect ofthe testimony; (3) the nature of the testimony; (4) the diligence of the adverse party;(5) the timely objection to the testimony;and (6) the good faith of the party callingthe witness. The decision whether or not toimpose sanctions lies within the sound discretion of the trial court, and that decisionwill not be reversed absent an abuse of discretion." Sullivan v. Edward Hospital, 209Ill. 2d 100, 110, 806 N.E.2d 645, 652 (2004).

Respondent failed to provide any argument as to how these sixfactors apply in this case. As a result, we cannot determine ifthe court abused its discretion in not barring these witnesses.

Rose Marie next makes several arguments that the trialcourt erred when it allowed testimony and business records intoevidence without proper foundation. A court's decision whetherto admit evidence will only be disturbed if the court abused itsdiscretion. Hiscott v. Peters, 324 Ill. App. 3d 114, 122, 754N.E.2d 839, 847 (2001). A party must make a proper objection topreserve his or her argument that the court erred in admittingevidence. Casson v. Nash, 74 Ill. 2d 164, 171, 384 N.E.2d 365,368 (1978). A specific objection only preserves the groundspecified. People v. Lewis, 165 Ill. 2d 305, 335, 651 N.E.2d 72,86 (1995). Objections must also be timely. Hunter v. Chicago &North Western Transportation Co., 200 Ill. App. 3d 458, 472, 558N.E.2d 216, 225 (1990). Respondent failed to preserve herfoundation objection to petitioner's exhibit No. 3 because sheonly objected that medical records are not admissible in Illinois. She did not raise a foundation objection until after thecourt admitted the exhibit into evidence.

Respondent also failed to preserve her argument thatErin Tanner should not have been allowed to read from her recordsbecause they had never been admitted into evidence and becausepetitioners failed to lay an adequate foundation that Tanner hadexhausted her memory.

Respondent also argues the court erred in allowingCraig Anderson to read from his notes, which respondent arguescontained hearsay. Respondent objected once to Anderson readingfrom his notes and that objection was sustained. With regard tothe alleged hearsay, respondent again objected once about astatement Anderson said respondent made to him. This objectionwas overruled. Respondent does not argue that the testimony inquestion does not fall within any of the hearsay exceptions, mostnotably the exception for admissions by a party opponent. As aresult, respondent has forfeited this argument pursuant to Rule341(e)(7) (Official Reports Advance Sheet No. 21 (October 17,2001), R. 341(e)(7), eff. October 1, 2001).

Finally, respondent argues the trial court erred inappointing petitioners Doyle and Eklund as guardians of Mrs.Doyle's person and estate, respectively. The standard of reviewfor the appointment of a guardian is abuse of discretion. In reSchmidt, 298 Ill. App. 3d 682, 690, 699 N.E.2d 1123, 1128 (1998). In determining who shall be a disabled person's guardian, the disabled person's personal preferences as to who shouldbe his or her guardian is outweighed by what is in the disabledperson's best interest. In re Estate of Bania, 130 Ill. App. 3d36, 40, 473 N.E.2d 489, 492 (1984).

When the court announced its decision regarding Mrs.Doyle's guardianship, the court specifically stated that no oneinvolved in the case minimized or "failed to appreciate the yearsof dedicated loving service and care which [respondent] hasprovided for Mrs. Doyle." However, the court also stated itappeared respondent's devotion to her mother eventually turnedinto abuse.

Respondent has presented no evidence that petitionersare unqualified to serve as guardians. Her only argument as totheir qualifications is that they do not live in Illinois. However, section 11a-5 of the Probate Act (755 ILCS 5/11a-5 (West2004)) does not list Illinois residency as a requirement to actas a guardian.

Before making its decision, the trial court heardnumerous witnesses testify in this case. Some witnesses testified they believed respondent was abusing Mrs. Doyle. Otherwitnesses testified Mrs. Doyle and respondent had a wonderfulrelationship. Based on the witnesses' testimony and the reportsof the guardian ad litem, the court determined it was in Mrs.Doyle's best interest for petitioners to act as her guardians. We do not find the trial court abused its discretion in makingthis determination.

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

TURNER, J., specially concurs.

COOK, P.J., dissents.

         JUSTICE TURNER, specially concurring:

         I agree with the majority opinion affirming the trialcourt's judgment. I write separately for the reasons thatfollow.

         First, the majority's opinion concludes the question ofwhether an incompetent individual can revoke a power of attorneyneed not be decided. I would find that such an individual cannotdo so.

"'From the time a person is adjudged to bedistracted and incapable of caring for hisproperty and effects, until, if ever, he isadjudged to be restored, he has no more legalpower to act for himself than as if he weredead. A contract made, or release or receiptgiven, by him has no legal significance.'" In re Estate of Kutchins, 169 Ill. App. 3d641, 645-46, 523 N.E.2d 1025, 1028 (1988),quoting Bradshaw v. Lucas, 214 Ill. App. 218,223 (1919).

         Once an individual is deemed incompetent, the power toact for onself from a legal standpoint ceases until such time asthe incompetency is removed. Until then, the agent acts in theindividual's stead. It would be illogical to allow an incompetent individual to revoke a power of attorney when the existenceof such a document aims to protect that person during his or herincompetency.

         Therefore, I would hold an incompetent individualcannot revoke a power of attorney. Notwithstanding, I agree withthe majority opinion that the trial court implicitly revokedrespondent's power of attorney pursuant to section 2-10 of thePower of Attorney Act (755 ILCS 45/2-10 (West 2004)).

         Second, I do not agree we need to address the questionof whether the term "shall" in section 11a-3(b) of the ProbateAct (755 ILCS 5/11a-3(b) (West 2004)) is mandatory or directive. Here, it is not the disabled adult who attempts to invoke section11a-3(b). It is, instead, respondent who does not take issuewith the trial court's appointment of a guardian but ratherobjects to the appointment of petitioners instead of her. Assuch, I would find the failure to comply with the 30-day noticeprovision of section 11a-3(b) was harmless error as to respondent's challenge to the appointment of petitioners.

         PRESIDING JUSTICE COOK, dissenting:

         I respectfully dissent. I would reverse the decisionof the trial court, recognize the continued validity of the powerof attorney granted by Mrs. Doyle, and remand for further proceedings.

         Prior to 1987, when a person who had granted a power ofattorney became incompetent, the power of attorney was automatically revoked. The reasoning was that only a competent personcould grant a power of attorney or continue it in effect. Article II of the Power of Attorney Act, the Durable Power ofAttorney Law (755 ILCS 45/2-1 through 2-11 (West 2004)) wasenacted to change that rule. The law recognizes it is importantthat "each individual has the right to appoint an agent to dealwith property or make personal and health care decisions for theindividual." 755 ILCS 45/2-1 (West 2004). That right "cannot befully effective unless the principal may empower the agent to actthroughout the principal's lifetime, including during periods ofdisability." 755 ILCS 45/2-1 (West 2004). The decision of acompetent principal to appoint an agent cannot be overcome bysimply appointing a guardian of the person's estate. Absent aspecial court order under section 2-10, "a guardian will have nopower, duty[,] or liability with respect to any property subjectto the agency." 755 ILCS 45/2-10 (West 2004).

         Before a court may supersede the principal's decisionto appoint an agent, a petition must be filed and notice given. 755 ILCS 45/2-10 (West 2004). The court must then find that "theprincipal lacks the capacity to control or revoke the agency" andeither that "the agent is not acting for the benefit of theprincipal" or "that the agent's action or inaction has caused orthreatens substantial harm to the principal's person or propertyin a manner not authorized or intended by the principal." 755ILCS 45/2-10 (West 2004). Only after those findings have beenmade may the court "order a guardian of the principal's person orestate to exercise any powers of the principal under the agency"or order the guardian to revoke the agency, or enter other ordersas the court deems necessary to provide for the best interests ofthe principal. 755 ILCS 45/2-10 (West 2004).

         The whole idea of the Durable Power of Attorney Law isthat the decision of a competent principal to appoint an agentshould not be easily overcome. The fact that the court would nothave selected the agent selected by the principal is irrelevant; what is important is what the principal thought best, not whatthe court thinks is best. The legislature would not have enactedthe Durable Power of Attorney Law if the solution was the appointment of a guardian of the estate; guardians of the estatecould be appointed before the Durable Power of Attorney Law wasenacted. The suggestion that whenever a guardian of an estate isappointed any exiting durable power of attorney is revoked iscontrary to the spirit and the letter of the Durable Power ofAttorney Law.

         A court may appoint a guardian of an estate when itfinds that the ward is incapable of managing her estate and it isin the best interests of the ward that the petitioner be appointed. More is required before a power of attorney may besuperseded. It is not enough, when a power of attorney has beengranted, that the court thinks someone else could do a betterjob. Cf. Bania, 130 Ill. App. 3d at 40, 473 N.E.2d at 492 (inguardianship cases, a disabled person's personal preference isoutweighed by what the court thinks is in the disabled person'sbest interests). To overcome a power of attorney, the court mustmake a specific finding that "the agent is not acting for thebenefit of the principal" or "that the agent's action or inactionhas caused or threatens substantial harm to the principal'sperson or property in a manner not authorized or intended by theprincipal." 755 ILCS 45/2-10 (West 2004). No such finding wasmade in the formal order entered in this case. In its oralcomments 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 didnot consider whether the facts met the higher standard necessaryto overcome a power of attorney.

         Petitioners attempted to overcome the power of attorney, not by presenting a petition under section 2-10, but byhaving Mrs. Doyle sign a revocation of the power of attorney andthen arguing that an incompetent person can revoke a durablepower of attorney. By definition, incompetent persons areincapable of taking any legal action. It is not necessary forthe statute to repeat that obvious fact. Even looking at thestatute, the statute's specific provision that a health carepower 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 todeal with property, where there is no similar provision, cannotbe so revoked. Likewise, the inclusion of a specific procedurefor the revocation of agencies to deal with property undersection 2-10 indicates that a durable power of attorney cannot bedestroyed by simply handing an incompetent a piece of paper tosign. Despite the specific requirements of section 2-10, therewas no petition filed in this case, no notice, and no findings.

         Courts often deal with situations where an elderlyperson is cared for by a child living in her community whileother children live at a distance. Sometimes the stress of day-to-day living and contact causes the elderly person to prefer thechildren she seldom sees over her caretaker. On the other hand,sometimes the caretaker takes advantage of the relationship. Thelanguage of section 2-10, however, is interesting. It is notenough to revoke a durable agency that there is harm to theprincipal's person or property. To revoke there must be substantial harm to the principal's person or property "in a manner notauthorized or intended by the principal." 755 ILCS 45/2-10 (West2004). 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 notclear what the situation is here. The trial court must determinewhether there is a basis for setting aside the power of attorneyunder section 2-10. Simply appointing a guardian does not do so.