Most people want to avoid Probate after death due to the expense, delays, and more. But did you know there is also a “Living Probate”? This term was coined to describe Guardianship and Conservatorship for the reason these are legal proceedings which occur in the probate division of the Court during a person’s lifetime. Did you know that if you did not have the proper estate planning documents in place and you were to become incapacitated (e.g., seriously ill, injured, or cognitively impaired) there is a good chance that you could become the subject of a probate proceeding (i.e., guardianship and conservatorship) yourself? Moreover, if someone you love (e.g., spouse, parent, adult child) were in the same situation you might still end up in a “Living Probate” as their legal guardian and/or conservator.    

What is a Guardian?  A legal Guardian is appointed by the Court will to make medical and personal decisions for an adult who is “incapacitated”, generally meaning unable to make appropriate or reasonable personal or medical decisions due to a medical, mental, physical or other cause.  An incapacitated adult is called a “ward.”  Guardians generally have the same powers, rights, and duties respecting the ward that a parent has to a minor child- except Guardians are not liable to third persons for acts of the ward. Limited guardianship may be appropriate where the ward has capacity to make certain decisions but not others. 

The Court may appoint a guardian when: 

  1. the ward is incapacitated, 
  2. the appointment is necessary to provide for the ward’s needs, and 
  3. the needs cannot be met by another option.  

When might you need guardianship? We often see the need for guardianship when an adult is suddenly incapacitated (e.g., serious stroke or accident) and has no health care directives in place. Even though state law allows a surrogate medical decision maker in that instance, in some cases guardianship is preferred or required to avoid disputes among family and provide clear instructions to medical providers. In other instances, there are medical directives in place but circumstances nevertheless require the appointment of a legal Guardian. For example, someone with Alzheimer’s disease who has significant behavioral issues may refuse appropriate medical treatment, long-term care placement, or help at home putting themselves at significant risk of harm.  So long as the patient verbally refuses medical treatment or related services, including placement, the Agent under Health Care Power of Attorney cannot override the patient’s expressed wishes. Under this scenario, the only way to protect the patient from the consequences of his or her own inappropriate decisions is to obtain Guardianship. Lastly, when a minor who has significant disabilities or special needs reaches the age of 18 they become legal adult and parents no longer have authority to make their medical, personal or educational decisions. If the child is unable to understand and handle these responsibilities Guardianship is required to enable the parent to continue handling these matters just as they did prior to age 18.  

Guardianship is a valuable tool used to take care of the most important personal and medical needs for someone unable to understand and handle these responsibilities themselves. It allows us to take care of and protect those vulnerable and incapacitated adults whom we care about.  That said, if guardianship can be avoid through simple advanced estate planning that is a far better and less expensive result. 

What is a Conservator? A Conservator is appointed by the Court to handle financial matters for minors until adulthood, and also for adults who meets the following criteria:  

  1. the person is unable to manage the person’s finances effectively for many reasons that may include mental illness or disorder, physical illness or disability, chronic use of drugs or intoxication, confinement, detention by a foreign power or disappearance, and 
  2. the person has assets that will be wasted unless proper management is provided, or 
  3. that funds are needed for the support, care, and welfare of the person, or  
  4. funds are needed for the support, care, and welfare of another who is entitled to be supported from the protected person. 

In managing the protected person’s affairs, a Conservator is to act as a fiduciary and shall observe the standard of care applicable to trustees. Conservators are typically required to post a fiduciary bond, submit annual accountings to the Court, and comply with numerous court orders and statutory requirements. If you are a Conservator, you should seek advice of an experienced elder law attorney to ensure you understand and comply with your duties and responsibilities. 

When is Conservatorship needed? If an adult is incapable of handling their own financial matters and they have no durable financial power of attorney in effect no one will have legal authority to manage their financial matters, not even a spouse! In such instances, a Conservator must be appointed by the Court; there is no alternative available. There are also instances where even though someone has a valid durable power of attorney in place a Conservatorship is still required. For example, when a vulnerable or incapacitated adult (e.g., dementia, Alzheimer’s, brain injury) is the victim of financial exploitation or is mismanaging their financial matters a Conservator may need to be appointed with exclusive control to protect the assets against waste or dissipation.   Conservatorship can be a very effective legal tool to protect someone you care about from unfortunate financial outcomes, when needed. That said, if Conservatorship can be avoided through simple advance estate planning that is always preferred. 

How can you avoid a costly and invasive Guardianship and Conservatorship proceeding, also known as a “Living Probate”? The number one way to avoid Guardianship and Conservatorship is for you and all those you care about (who you might be responsible for if they were incapacitated) to be certain all estate planning documents are complete and up-to-date. The following documents are critical to avoiding a “living probate”: health care and mental health power of attorneys, living wills, durable financial power of attorney, and revocable trusts. They name the persons you want to fill medical decision making and financial management roles, if ever needed.

Having effective and experienced legal counsel who have seen through these situations and types of cases is invaluable in helping to avoid legal proceedings or work through them, when needed, to help with the best possible outcome. Contact our experienced estate planning and elder law attorneys for advice on how to best avoid Court, when possible, or alternatively use Court, when needed, to seek protection for your vulnerable loved ones.  Call 480-922-1010 or email info@bivenslaw.com to schedule your consultation today!