Attorney Garrett T. Smith

By Attorney Garrett T. Smith

Many people have heard of probate; however, far fewer have heard of living probate. Probate is required when someone passes away with a will (testate) or without a will (intestate). Probate can be avoided by using a properly funded trust. Living probate differs because it is required when a person is still alive but loses capacity prior to death. The process involves filing with the probate court to be appointed as a conservator (financial agent) or guardian (medical agent) of the incapacitated person. Financial powers of attorney and an advanced health care directive can keep you out of the living probate process and save various court costs and attorney fees.

For many people, there comes a time when they lose the capacity to make decisions prior to death. This can cause financial and emotional problems for the remaining family members. For example, some spouses may not have each other listed on all bank accounts. If the spouse listed on the account became incapacitated, the non-incapacitated spouse would not have access to those funds to keep the lights on or pay other bills. Some spouses keep separate bank accounts for various reasons and solve this potential issue by creating a financial power of attorney. This allows the person (while they are still of sound mind) to appoint another person to make financial decisions on their behalf in the case of incapacity.

Similarly, an advanced health care directive allows an individual (while they are still of sound mind) to appoint a health care agent to make health care decisions on their behalf in the case of incapacity. Health care documents provide a person with the ability to give directions with regard to medical treatment, nursing homes, organ donation, life support, etc. Many people choose to avoid or postpone these uncomfortable conversations. Having a plan in place and appointing a health care agent to make decisions can alleviate many financial and emotional burdens that would otherwise be placed on the shoulders of loved ones.

I highly respect judges and their ability to gather information and make good judgments; however, they do not always have enough information to make the best decision. I had a client whose brother took advantage of their mother to the mother’s detriment. My client’s brother petitioned the court to be appointed the sole conservator and guardian of their incapacitated mother. My client initially agreed to the brother’s appointment as long as he agreed to follow the terms of a care agreement that would protect their mother and her estate. The brother breached nearly every term of the agreement, put the mother in a retirement home, and depleted the estate for his own benefit. Leaving decisions up to a judge can create problems for your heirs.

Please reach out if you have any questions about avoiding a living probate!

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