Mother and daughter paying a visit to the doctor

Purpose of Living Probate

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.

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Purpose of Living Probate

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.

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

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.

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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.

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.

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