Living Probate

What Happens if I can no Longer Take Care of Myself?

For most of our lives, the greatest risk to our well-being isn’t death. It’s the ever-growing likelihood of becoming seriously ill or injured. When an illness or injury leads to the inability to manage our own affairs, we may face something even worse. It’s a legal process called Living Probate, and for those who must endure it, it is often a living nightmare. Many people know that probate occurs when someone dies, but what they may not know, is that it can also occur while a person is alive, hence the term “living probate.” Living probate can occur when someone becomes unable to manage his or her own affairs due to a physical or mental incapacity, for example, stroke, dementia or Alzheimer’s, and they failed to plan for this situation. Living probate involves a court appointing a surrogate decision maker, usually called a Guardian and / or Conservator. While a person’s Guardian or Conservator can be the same person, they can also be different. They also don’t have to be individuals or family members. A typical situation is a family member being appointed guardian, while a bank or other institution is appointed conservator. Ultimately, it’s up to the court to decide who (or what) acts in each of these respective capacities. Regardless, it is important to understand that Guardians and Conservators are not the same.

While living probate serves a very legitimate and often necessary purpose, it can also be a costly, time-consuming, bureaucratic and public process. Living Probate often results in an outcome that is vastly different from what someone would have wanted otherwise – just like dying intestate. The outcome may not be what you intended because there were no clear instructions (plan) about what the now incapacitated person wanted and who they wanted to be responsible.

The Purpose of Living Probate is Twofold:

Guardianship

The first is to appoint someone to physically care for the incapacitated person, which includes decisions like approving certain medical procedures, if necessary, or deciding where that person will live. This person is known as a Guardian.

Living probate directional arrow between conservatorship and Guardianship

Conservatorship

The second is to appoint someone to manage the person’s financial affairs. This includes things like managing financial accounts, paying bills and possibly securing and maintaining the person’s household in their absence. This person is referred to as a Conservator.

The Living Probate Process

Although it varies from state to state, living probate usually involves the following steps:

  • The “interested party”, normally a spouse or child, but for clarity, anyone with a vested interest in the person, including social workers, petitions the court for either guardianship, conservatorship or both.
  • Next, with little, or often no, notice to the alleged incapacitated person, an initial hearing will take place where the Petitioner will likely be granted temporary guardianship and/or conservatorship.
  • In approximately 95% of all cases, the alleged incapacitated person does not challenge this petition.
  • This temporary appointment provides the guardian and/or conservator with the ability to act on behalf of the incapacitated person on an emergency or temporary basis.
  • For example, to authorize needed medical treatment or pay necessary expenses.

Approximately 14 to 21 days later, a second hearing will take place affirming the prior appointment of both the guardian and conservator. If unchallenged at that time, the appointment becomes permanent and the incapacitated person becomes legally known as the “protected person.” It’s important to understand that the initial appointment of a guardian or conservator is often only temporary. The latter hearing is where the judge will consider alternative petitioners, if any, and render final decision about appointment of the permanent guardian or conservator. Interestingly, if uncontested, these hearings usually last no more than 10 to 15 minutes. Once permanent guardianship and conservatorship has been established, the conservator, will be required to prepare an inventory of assets held by the protected person. The purpose of this inventory is to establish a record of assets held by the protected person at the time of their incapacity over which the conservator now has control. Once permanent guardianship and conservatorship has been established, the guardian will determine where the protected person will live. The Guardian is not obligated to allow the protected person to remain in his or her home or even consult with him/her about a preference. At least annually, if not more frequently, the conservator will be required to provide periodic “updates” to the court. These reports detail how assets are being utilized or “conserved” for the benefit of the protected person. Finally, if the Judge should determine, in his or her opinion, that none of the applied petitioners (family members) are suitable as guardian and/or conservator, he or she may appoint a professional guardian or conservator as an alternative. If the Judge appoints a professional guardian or conservator, it is usually not an individual, but rather an institution, which will undoubtedly charge for their services. It is not uncommon for such institutions to charge fees as high as 2%- 3%, annually, of the assets under management as conservators, and hourly for time spent providing services as guardian. Similar to the actions of a personal representative under a person’s will or a successor trustee of a trust, your conservator has a “fiduciary duty” to the protected person. This means that they must act in the best interest of the protected person, and not their own. Fiduciaries can be held both criminally and civilly liable for their actions in this capacity.

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