The Living Probate Process

Who will make decisions for me if I am unable?

The Living Probate Process

Who will make decisions for me if I am unable?

What is living probate?

Living probate is a legal process needed when someone is unable to manage his or her own affairs (finances, medical treatment, living arrangements) because of a physical or mental incapacity and has failed to plan for the possibility. In living probate, a court is petitioned to appoint a surrogate decision-maker (guardian) to act on behalf of an incapacitated person (ward).  

How does the living probate process work?             

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

The Living Probate Process

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FAQ's About Living Probate Guardianship Comprehensive Estate Plan
Petition Court?
Required Not Required
Have a Judicial Hearing? Yes No
Court Names Decision-Makers?
Yes No
End-of-Life Medical Care?
Guardian Decides You Decide
Family Has Control?
No Yes
Public Process? Yes No

Is it necessary to petition the court? 

If you have a comprehensive estate plan with powers of attorney for health and finances and/or a revocable living trust with a successor trustee, a guardianship petition won’t be necessary if you become incapacitated. If the court is petitioned, your agent or trustee can present proof of their authority to manage your affairs, stay out of probate court and minimize legal expenses. 

If a person lacks a comprehensive plan, a petition must be filed with the court to appoint a guardian to manage all aspects of the person’s affairs. One or more petitions may be filed with competing interests among family members, social workers and other interested parties, which can complicate and delay proceedings and add to legal expenses. 

Does the court appoint my surrogate decision-maker?

The court will appoint your surrogate decision-maker if you lack powers of attorney and/or a successor trustee to manage health care, living arrangements and financial matters on your behalf. The court can reject recommendations of family members, especially if there is disagreement among them, and appoint a professional guardian.

You appoint your own surrogate decision-makers through your revocable living trust and powers of attorney. Your successor trustee manages assets funded into your trust according to your instructions; your financial power of attorney manages assets not controlled by your trust; and your health care power of attorney manages your medical treatment. 

If I’m incapacitated, is a guardianship hearing required?

A judicial hearing is not necessary if your powers of attorney and trust include provisions that allow doctors to agree on a diagnosis of incapacity (a medical, not judicial, determination). If surrogate decision-makers have been predetermined by you through your existing powers of attorney and your revocable living trust, a guardianship hearing is not required.

If you lack planning documents that appoint agents to act on your behalf, a judicial hearing will be required to appoint a guardian. 

Who makes decisions for me about end-of-life care?

A guardian will make end-of-life care decisions regarding the extent of your treatment if you fail to make provisions through legal documents. Studies show that guardians are reluctant to limit care, and in about 25% of cases, the guardian is a paid organization or person unrelated to the ward. Most state laws fail to define a court-appointed guardian’s duties on life-sustaining treatment decisions.

You control your own end-of-life care ahead of time with an advance health care directive (living will). Your power of attorney for health care follows the health care and life-support preferences specified in your advance directive if you become incapacitated and terminally ill. You can instruct that your family members and loved ones be involved in the decision making to reflect your wishes.

Does the family have control?

The family does not have control in a guardianship hearing. A judge has the final say on the appointment of a guardian and is not obligated to appoint a family member. The guardian controls where the ward will live and can overrule the wishes of the family. Also, the guardian has no obligation to follow preferences of the ward and is responsible only to the court.

Your family can maintain control of your affairs as you see fit under the predetermined terms of your powers of attorney, advance health care directive and revocable living trust. Your family also can follow your wishes, for example, to remain in your home. The family members and loved ones you choose have ultimate control over your affairs.

Is living probate a public process?

As a legal proceeding, living probate is a public process. Financial, medical and other sensitive information is commonly shared in open court and made part of the public record. As a result, your personal information is exposed to potential fraud and exploitation. Private details about your physical and mental health, finances, family relations and other matters, as a public record, are available for publication in the news media and posting on social media.

Your revocable living trust is a private contract with your successor trustee used to control assets upon your incapacity. Financial and medical information and instructions in your trust remain private and safeguarded from unwanted exposure. Powers of attorney and advance health care directives do have to be signed, witnessed and notarized, but are not public records vulnerable to news and social media scrutiny.