Understanding Living Probate And The Increasing Need For Guardianship and Conservatorship
The concept of "living probate" typically includes one or both of two legal processes: guardianship and conservatorship. A guardian, or "guardian of the person" typically refers to a court-appointed person or entity responsible for making personal decisions for the person under guardianship. These can include such things as health care decisions and living arrangement arrangements, including whether or not you will be placed in a nursing home.
A conservator, or "guardian of the estate," is the person or entity appointed by the court to manage all of your financial affairs. They pay your bills, decide which assets to sell or keep, how to invest your money, and even how much of your money you can have access to.
Given the substantial loss of freedom involved, one might assume that the court procedure for imposing a guardianship or conservatorship is meticulous and filled with safeguards. But in reality, in many states, the opposite is true. A study in Michigan, for example, revealed that the average adult guardianship/conservatorship hearing there lasted only about 3-5 minutes. Also, more often than not, the person standing to lose his/her rights was not present at the hearing.
For these reasons, guardianship and conservatorship proceedings, or "living probate," as it is commonly referred to, should be of particular interest to today's seniors. For most seniors, one of the primary goals of estate planning is maintaining control; specifically, the control of his/her assets, even after death. Living probate represents a nearly total loss of control. In most cases, by the time the senior finds out about the living probate proceeding, he/she has already lost his/her rights. In addition, these hearings, and the court records to go along with them, are open to the public.
Regardless of your stage in life, but especially for seniors, going without an estate plan is a risky proposition. An unforeseen and tragic accident can lead to the death, or incapacity, of even the healthiest of individuals. This risk is even higher for seniors, as conditions like Alzheimer's disease and dementia disproportionately affect this group. That why the Alzheimer's Association pointed out in a 2011 publication, "While it's important for everyone to plan for the future, legal plans are especially vital for a person at risk for dementia."
Proper estate planning can help seniors avoid this loss of control, and allow them to have a say in who makes decisions for them if they cannot do it on their own. Some estate plans are designed to have, as one of their benefits, extra safeguards that diminish the likelihood of, or the motivation behind, someone filing a petition for guardianship or conservatorship.
Proper estate planning will also allow seniors to indicate who they want to make their medical decisions if they cannot decide themselves.
A conservator, or "guardian of the estate," is the person or entity appointed by the court to manage all of your financial affairs. They pay your bills, decide which assets to sell or keep, how to invest your money, and even how much of your money you can have access to.
Given the substantial loss of freedom involved, one might assume that the court procedure for imposing a guardianship or conservatorship is meticulous and filled with safeguards. But in reality, in many states, the opposite is true. A study in Michigan, for example, revealed that the average adult guardianship/conservatorship hearing there lasted only about 3-5 minutes. Also, more often than not, the person standing to lose his/her rights was not present at the hearing.
For these reasons, guardianship and conservatorship proceedings, or "living probate," as it is commonly referred to, should be of particular interest to today's seniors. For most seniors, one of the primary goals of estate planning is maintaining control; specifically, the control of his/her assets, even after death. Living probate represents a nearly total loss of control. In most cases, by the time the senior finds out about the living probate proceeding, he/she has already lost his/her rights. In addition, these hearings, and the court records to go along with them, are open to the public.
Regardless of your stage in life, but especially for seniors, going without an estate plan is a risky proposition. An unforeseen and tragic accident can lead to the death, or incapacity, of even the healthiest of individuals. This risk is even higher for seniors, as conditions like Alzheimer's disease and dementia disproportionately affect this group. That why the Alzheimer's Association pointed out in a 2011 publication, "While it's important for everyone to plan for the future, legal plans are especially vital for a person at risk for dementia."
Proper estate planning can help seniors avoid this loss of control, and allow them to have a say in who makes decisions for them if they cannot do it on their own. Some estate plans are designed to have, as one of their benefits, extra safeguards that diminish the likelihood of, or the motivation behind, someone filing a petition for guardianship or conservatorship.
Proper estate planning will also allow seniors to indicate who they want to make their medical decisions if they cannot decide themselves.