ORDER
G. MURRAY SNOW, District Judge.
On December 7, 2011, Plaintiff Christopher Stoller, who was then incarcerated in the Lake County Adult Corrections Facility, in Waukegan, Illinois, commenced this action pro se in the Central District of Illinois.1 That Court transferred the case to this District based on venue. (Doc. 1, 2.) Subsequent filings submitted by Plaintiff reflected that he was subject to a guardianship and that he lacked the legal capacity to commence this case. The Court ordered Plaintiff to show cause why this action should not be dismissed on that basis. Counsel then appeared for Plaintiff and responded to the show cause order. As discussed below, the Court will dismiss the Complaint and this action and deny the pending motions.
Plaintiff submitted a copy of a February 2011 Order issued by the Illinois Circuit Court for the Nineteenth Judicial Circuit (Illinois Probate Court) appointing the Illinois Office of the State Guardian as plenary guardian over Plaintiff's estate and person, case# 09 P 957.2 (Doc. 10, ex. 1.) Plaintiff's brother, Leo Stoller (Leo), sought the guardianship. (Id.) The Illinois Probate Court determined that Plaintiff was "totally without understanding or capacity to make and communicate decisions regarding his person" and his estate.3 (Id.)
In an Order filed on January 3, 2012, this Court ordered Plaintiff to show cause why this action should not be dismissed based on his lack of legal capacity to commence this action due to the guardianship. (Id.) On February 6, 2012, Plaintiff, appearing for the first time through counsel, filed a "Motion to Show Cause," which the Court construed as a Response to the January 3, 2012 Order.4 (Doc. 42.) On February 9, 2012, the Court ordered Plaintiff to file a memorandum of points and authorities in support of his Response to the show cause order. (Doc. 48.)
Through counsel, Plaintiff filed a memorandum in response to the February 9, 2012 Order.5 (Doc. 58.) In it, Plaintiff states that three years prior to the appointment of a guardian, he executed a "General Durable Power of Attorney Effective Upon Execution" (POA) naming his brother, Leo, as his attorney-in-fact. (Id.) Plaintiff submitted a copy of the POA as exhibit 2 to his memorandum, which reflects that it was signed and notarized by a Maricopa County notary on October 24, 2007. (Id., ex. 2.) In the POA, Plaintiff delegated to Leo full power and authority to manage and conduct all of Plaintiff's affairs and to exercise Plaintiff's legal rights and powers, including among others, those: to collect, hold, maintain, improve, invest, lease or otherwise manage any or all of his real or personal property or any interest therein; to purchase, sell, mortgage, grant options, or otherwise deal in any way in any real or personal property; to engage in any administrative or legal proceedings or lawsuits in connection with any matter covered by the POA; to engage and dismiss agents, counsel, and employees in connection with any matter, upon such terms as Leo, as Plaintiff's agent, determined and to sue on Plaintiff's behalf; and to contravene any medical power of attorney Plaintiff executed whether prior or subsequent to the execution of the POA. (Id.) Plaintiff argues that under Illinois law the power granted pursuant to the POA governs or controls any subsequent power conferred on the later-appointed guardian, citing 755 Ill. Comp. Stat. 5/11a-17(c) and 5/11a-18(e).
The Illinois Power of Attorney Act "... governs every agency, whenever and wherever executed, and all acts of the agent to the extent the provisions of this Act are not inconsistent with the agency"6 and "... applies to all agencies exercised in Illinois and to all other agencies if the principal is a resident of Illinois at the time the agency is signed or at the time of exercise or if the agency indicates that Illinois law is to apply." 755 Ill. Comp. Stat. 45/2-4(b). Otherwise, "[u]nless the agency states an earlier termination date, the agency continues until the death of the principal, notwithstanding any lapse of time, the principal's disability or incapacity or appointment of a guardian for the principal after the agency is signed." 755 Ill. Comp. Stat. 45/2-5. Further,
Absent court order pursuant to the Illinois Power of Attorney Act directing a guardian to exercise powers of the principal under an agency that survives disability, the guardian has no power, duty, or liability with respect to any personal or health care matters covered by the agency. This subsection (c) applies to all agencies, whenever and wherever executed.
755 Ill. Comp. Stat. 5/11a-17(c) (emphasis added). In addition,
Absent court order pursuant to the Illinois Power of Attorney Act directing a guardian to exercise powers of the principal under an agency that survives disability, the guardian will have no power, duty or liability with respect to any property subject to the agency. This subsection (e) applies to all agencies, whenever and wherever executed.
755 Ill. Comp. Stat. 5/11a-18(e) (emphasis added).
The POA does not state a termination date or that Illinois law applies, and Plaintiff appears to have been an Arizona resident at the time he executed the POA.7 Nevertheless, Plaintiff's counsel represents that Plaintiff is currently an Illinois resident. (Doc. 58, at ¶ 3.) Because Plaintiff executed a durable POA prior to the guardianship, absent a court order pursuant to the Illinois Power of Attorney Act, Plaintiff's plenary guardian has no power, duty, or liability with respect to any personal or health care matters covered by the agency or with respect to any property subject to the agency. Thus, it appears that Plaintiff's plenary guardian has no power, duty, or liability with respect to Plaintiff's claims in this case, which concern alleged interests in real property. That does not establish, however, that Plaintiff had or has the legal capacity to litigate this case, pro se, or through counsel. Instead, it appears that power belonged and belongs to Plaintiff's agent, Leo Stoller.
Plaintiff claims in the memorandum that:
Pursuant to the powers as Agent granted to Leo Stoller in the durable Power of Attorney and acting for the benefit of the Principal, Leo Stoller commenced this action on behalf of the Principal [pursuant to the terms of the POA].
(Doc. 58 at ¶ 5) (emphasis added). This assertion is belied by the record in this case. The Complaint and everything filed in this case to date have been signed by Plaintiff, or later, Plaintiff's attorney. Contrary to Plaintiff's statements in the memorandum, Plaintiff filed this action, pro se, not his brother (and agent).8 Plaintiff also claims that
Regardless of the ward's capacity to bring this suit on its [sic] own, due to the powers vested in the Agent through the power of attorney, Leo Stoller has the capacity to maintain this cause of action and does so acting on behalf of the Principal, Christopher Stoller.
(Doc. 58 at ¶ 6). While Leo Stoller has the power as Plaintiff's agent to commence and litigate an action on Plaintiff's behalf, Leo Stoller has not done so in this case. Further, while Plaintiff asserts that his agent endorses the bringing of this action, Plaintiff's attorney does not claim to represent Leo, nor has Leo otherwise appeared.
Plaintiff has not demonstrated that he had or has the legal capacity to litigate this action and Plaintiff's agent has not appeared in this action. The Court accordingly finds that Plaintiff has failed to show that he possessed or possesses the legal capacity to litigate this case. Accordingly, the Complaint and this action will be dismissed.
IT IS ORDERED:
(1) The Complaint and this action are dismissed.
(2) Plaintiff's pending motions are denied. (Doc. 37, 59.)
(3) The Clerk must enter judgment of dismissal.
(4)The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith.
