The Living Probate Process

Grandson and Grandfather having a serious conversation.

Who will make decisions for me if I am unable?

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

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 have been established, the following duties and responsibilities will apply each respectively:

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.