Many of you are familiar with the term Probate and associate it with a process that may occur after someone’s death particularly if they did not do an estate plan. However, you may be unfamiliar (as many people are) with the Living Probate process, which arises while you are still alive. Here is what you should know.

In Massachusetts, a Living Probate is commonly referred to as Conservatorship and/or Guardianship Proceedings. When an adult can no longer manage his or her financial affairs, property, or business affairs because he or she has become seriously disabled or incapacitated, it may become necessary for a family member or friend to petition the Probate and Family Court to be appointed Conservator for that individual.  When the issues at hand involve medical or other personal/care-related decisions, the Court will appoint a Guardian.

The Living Probate process is not without challenge. The petitioner for a Conservatorship or Guardianship Proceeding must provide proof of incapacity, which involves an extensive medical examination and documentation process.  Furthermore, notice of the proceedings must be given to interested parties (family/next of kin) as well as to the proposed protected person (the person being placed under the Guardianship/Conservatorship).  While sometimes unavoidable to protect a person who has lost capacity, these proceedings can feel demeaning to the protected person, who is being adjudicated by a Court as being legally incompetent.   

Conservators and Guardians will contend with many challenges which include managing the protected person’s income, assets and property, preventing the protected person’s property from being wasted or dissipated, and managing serious medical decisions as the protected person becomes more debilitated or ages.  All of this must be done with Court supervision, and will require ongoing court filings and fees.

Avoiding Conservatorship or Guardianship

Fortunately there are ways to avoid having you and your assets placed in a court appointed Conservatorship or Guardianship. Among the vehicles available to you are:

  • A Durable Power of Attorney – through which you appoint a person to handle your finances for you such as paying your bills, selling or buying property, or managing assets when you can no longer do so
  • A Healthcare Proxy – that will allow a person of your choice to make medical decisions for you; this document is crucial especially if life-and-death decisions must be made
  • A Revocable Living Trust – which will save you and your family time and money and allow you to specify how your assets will be handled both in sickness and after your death

Avoid having a court make decisions for you – make an appointment today with an attorney who specializes in estate and asset protection planning, one who will help develop an estate plan that ensures your unique needs will be handled according to your wishes.

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