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 an 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.

Will a spouse automatically be chosen as the Guardian/Conservator over the incapacitated spouse? Not necessarily. The judge will have the discretion to appoint the person that he/she feels will best take care of the incapacitated person. This usually is not an issue with spouses, but rather with multiple siblings wanting to be appointed over their parents.

Does a parent have the automatic right to make the decisions for their children over eighteen (18) years of age? The answer is No. Let’s take an example to illustrate:  Julie’s eighteen year old son, Eric, was involved in a car accident and unconscious.  Eric had never created any Powers of Attorney giving another person the right to be able to make his decisions if he was unable to do so. In order for Julie to be able to make any of his immediate and future medical decisions, she will need to be appointed her son’s Guardian. Likewise, in order for Julie to be able to make any of her son’s financial decisions, perhaps insurance claims as a victim of the accident, she will need to be appointed his Conservator.

We can avoid this unnecessary cost and humiliation during our life. How? A properly drafted Healthcare Power of Attorney, Mental Healthcare Power of Attorney, Living Will, and HIPAA can help avoid a Living Probate because they nominate an individual chosen by you, not the court, to get access to and handle your medical decisions should you become incapacitated.

Avoiding a Living Probate over financial decision making should you become incapacitated, is slightly more complicated. A properly drafted Financial Power of Attorney should do the trick; however, there is always the possibility that the financial institution will require its own internal power of attorney form to be completed. If you are incapacitated, you will be unable to sign this form and a conservatorship would need to be started on your behalf.

Unfortunately, most people think they will never become incapacitated and therefore never plan for this possibility while they are alive. Let’s plan now to avoid any unnecessary expense and delay for your loved ones.

Why Choose Morris Hall:
You have a number of options when it comes to estate planning, so why pick Morris Hall?  First off, estate planning and asset protection are a very complicated endeavor and you should only trust someone who focuses exclusively on those matters.  Also, MH is a proud member of The American Academy of Estate Planning Attorneys (AAEPA) which provides us additional support, advanced training, tools and information that is not available to others – which means that we can better protect your assets and your loved ones.  We are one of only two firms in Arizona that belong to the AAEPA and are the only firm in New Mexico that has been granted membership.  If you have assets and loved ones that you want to protect, you are in good hands with MH.  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.