How to Avoid a "Living Probate"
What is a "Living Probate" and why might I want to plan around it . . .A "Living Probate" is that process in which an incapacitated person is required to appear in Probate Court for the purpose of having other people appointed to take over the responsibility of managing him and/or his finances. Most folks have heard the words "guardian" and "conservator" .. . In legal terms, a Probate Judge can appoint a "Guardian" to make decisions for a person who is no longer competent to do so for themself; it might also apply to what is known as a "Vulnerable Adult" meaning the person is a threat to their own safety or the safety of others. A "Conservator" is the title given the person appointed by a Probate Judge to be responsible for the financial and/or business dealings of the incompetent person. With either, the incapacitated person and his/her family lose control by this process. The Court is in charge and the appointed guardian and conservator will be reporting to the Judge on an annual or bi-annual basis.
What are the options if I want my family to be in charge and do not want to lose control to the Probate Court?One of the great advantages of a Living Trust is to work with a counseling oriented attorney and create in your trust a process for you to keep control in the event of your incapacity. For example, rather than having a "Public determination" of your incapacity via the Probate Court, you can in your trust set up a procedure for a "Private determination" by your listing people you wish to make that decision. I have seen people chose to have just their regular doctor make the decision; however, it is more common for folks to involve not only their regular doctor, but their spouse and one or more of their children to a "panel" who can make the decison of incapacity. For folks who feel they would rather have family and professional medical people who know them well make this big decision, rather than a Judge they do not know, and a court-appointed doctor who they don't know, the option of planning with a Living Trust is an option they really want!