Lifetime Probate & How To Avoid It

One of our firm’s primary goals is to assist our clients prepare an estate plan that prevents any unnecessary probate court involvement. However, for those who have not done the planning required to avoid probate, it may be necessary for someone to initiate a probate proceeding to seek court permission to handle that person’s affairs - including Guardianships and Conservatorships. 

Guardianship 

If the Probate Court finds by clear and convincing evidence that a person is incapacitated and needs continuing care and supervision (called a “Ward”), the court may appoint a Guardian to make care decisions on the his or her behalf. A Guardian is a person appointed by the Probate Court to make care decisions for a minor or an incapacitated adult in need of continuing care and supervision. The incapacity may result from physical problems, dementia, or mental illness. 

Seeking appointment as a Guardian requires obtaining the requisite medical proofs to establish the necessity of a guardianship, preparing numerous court documents, filing documents with the court and serving them upon all “interested persons” in a timely fashion, and attending and presenting proofs at court hearings. Annual reports regarding the ward’s condition must be filed with the court in order to avoid suspension of the guardian’s authority. 

A Guardianship can be avoided entirely with a properly prepared Patient Advocate Designation (a/k/a Medical Power of Attorney or Durable Power of Attorney for Health Care) and HIPAA Authorization. A Patient Advocate’s authority to make medical and mental health treatment decisions is superior to that of a Guardian. These documents must be prepared and executedbefore a person becomes incapacitated.  

A Guardianship lasts until the Ward dies or no longer needs supervision. 

Conservatorship 

If the Probate Court finds by clear and convincing evidence that a person is unable to manage his or her property and business affairs effectively due to incapacity, confinement, detention by a foreign power, or disappearance, and that the person’s assets will be wasted, dissipated or unavailable for support without proper management, then the court may appoint a Conservator to manage the assets on the person’s behalf. 

The procedures required to establish and maintain a Conservatorship are complicated, costly, time consuming, and restrictive. This is in no small part due to the fact that the process usually requires two attorneys. One attorney represents the petitioner. Another is appointed by the court (called a “Guardian Ad Litem”) to investigate the allegations in the petition. The costs of both attorneys are usually borne by the person for whom conservatorship is sought. 

Seeking appointment as a Conservator requires obtaining the requisite medical proofs to establish the necessity of a conservatorship, preparing numerous court documents, filing documents with the court and serving them upon all “interested persons” in a timely fashion, obtaining a surety bond, and attending and presenting proofs at court hearings. An initial inventory and annual “accountings” of the Ward’s assets, income, and expenses must be filed with and approved by the probate court. Failure to properly account for the ward’s assets can result in personal liability and suspension of the conservator’s authority. This necessitates the ongoing involvement of an attorney, which adds further annual costs. 

A Conservatorship can be avoided entirely with a properly prepared Durable Financial Power of Attorney (a/k/a Durable Power of Attorney for Finances) and/or a Living Trust (a/k/a Revocable Living Trust or Inter-Vivos Trust). These documents must be prepared and executed before a person becomes incapacitated.  

A Conservatorship lasts until the Ward dies, the Ward no longer needs assistance with the management of his or her property, or the Ward’s assets are used up.

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