Obtaining Guardianship of a Spouse With Dementia in Illinois

 Posted on March 12, 2020 in Estate Planning

The World Health Organization estimates that about 50 million people throughout the world currently suffer from dementia. Alzheimer’s disease accounts for about 60-70 percent of all dementia cases. Watching a loved one with dementia suffer from memory loss and cognitive impairment can be heartbreaking, especially if that loved one is your spouse. If your husband or wife has dementia, Alzheimer’s disease, or another health issue that affects cognitive function, you may worry about his or her ability to make important decisions. One way you may obtain the ability to make decisions on behalf of your spouse is through legal guardianship.  

Types of Guardianships in Illinois

When a person cannot communicate his or her needs or make rational decisions, a loved one may choose to establish guardianship so that he or she can make decisions on the person’s behalf. The Illinois Probate Act describes several types of guardianship including limited guardianship, plenary guardianship, guardianship of a person, guardianship of the estate, and more. If your spouse has dementia but is still able to make some decisions on his or her own, a limited guardianship may be appropriate. If you become a “limited guardian,” you will be permitted to make any decisions about your spouse’s finances, medical treatment, and personal care that he or she cannot make on his or her own, but the scope of those decisions will generally be limited by the court that grants the guardianship.

If your spouse has significant impairment, a plenary guardianship will allow you to make all of the decisions about his or her finances and care. Guardianship of the estate is used to ensure that a disabled person’s financial affairs are properly managed. If you are unsure as to what guardianship is appropriate for your particular situation, speak with an estate planning attorney to receive personalized guidance.

When is a Guardian Needed?

If your spouse has still has a degree of independence and lucidity, you may be unsure as to whether guardianship is necessary or even possible. Illinois law allows a guardian to be appointed if an individual is disabled due to mental illness, developmental disability, physical incapacitation, or mental deterioration. The main test for determining whether or not a person is disabled enough to need a guardian is whether or not the person is capable of making decisions and communicating his or her choices. This determination must be made by the court, but it is based on evidence presented by the person seeking the guardianship and credible witness testimony. If your spouse can no longer understand his or her medical options and the consequences of these options, for example, you may want to consider guardianship. In addition to an attorney, your spouse’s physician is a valuable resource when it comes to determining whether or not guardianship is the right choice.

Contact a DuPage County Guardianship Lawyer

The process of obtaining legal guardianship can be complicated, as can carrying out the duties of a legal guardian. To learn more about the guardianship options in Illinois, contact A. Traub & Associates. Call our office at 630-426-0196 to schedule a confidential consultation with an experienced Lombard estate planning attorney today.

Sources:

https://www.who.int/news-room/fact-sheets/detail/dementia

https://www2.illinois.gov/sites/gac/AboutUs/Pages/GuardFAQ.aspx#qst6