When we think of “Probate” most of us think that at our death this is how our “stuff” is distributed to our families. This is called a Death Probate. However, a probate can also happen when we are alive, but unable to handle our medical and financial affairs. This is called a Living Probate, hence, a probate while we are living.
A Living Probate is a court process essentially called a Guardianship and/or Conservatorship proceeding. This process requires a person to be appointed by the court to be able to make the medical and/or financial decisions for the incapacitated person. There are many disadvantages of a Guardianship/Conservatorship proceeding. The process is open to the public, time consuming, humiliating and expensive. On average, the cost of a Guardianship/Conservatorship is $5,000-$10,000. And, worst of all, the incapacitated person loses control of who is ultimately appointed.
A properly executed Financial Power of Attorney should allow the nominated agent the authority to manage the financial account(s) owned by the incapacitated person. However, sometimes there are financial institutions that have their own internal policies that require additional paperwork to be completed at the same time the Power of Attorney is being presented. It’s a catch twenty-two, because the reason the Power of Attorney is being used is because the person is incapacitated, so they would be unable to complete any additional paperwork at that time. Unfortunately, a court process to initiate a Conservatorship would have to happen for someone to be in charge of the particular account(s).
Depending upon the size of your estate, there may be alternative estate planning options to assure that your loved ones would never have to go through a Living Probate. Contact one of our estate planning attorneys for a no-cost consultation to review your individual situation.
About Morris Hall:
At Morris Hall, we have focused our legal practice on estate planning for over 40 years. Along with estate planning, our attorneys help clients and their families with matters of probate, trust administration, wills, power of attorneys, business planning, succession planning, legacy planning, charitable gifting and other important legal aspects. We also have divisions in financial, real estate and accounting to help you incorporate all of your planning together, ensuring that everything works perfectly for your needs and situation. Our Arizona offices are located in Phoenix, Mesa, Scottsdale, Cave Creek, Tucson, Prescott, Flagstaff and Arrowhead. Our New Mexico offices are located in Albuquerque, Las Cruces and Santa Fe. Contact us today at 888.222.1328 to schedule an appointment!
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.