You often hear the word probate associated with wills and other estate planning matters. An estate planning lawyer may advise you to do everything in your power to avoid probate if possible because of the mass of paperwork and potential hurdles involved. Probate does not have the same meaning in every case. There are forms of probate that are largely different, and they are enacted when someone is still alive, as opposed to occurring after they die.
Living probate involves establishing a mechanism to care for someone while they are still alive and to make decisions on their behalf. Here, whether it is because of declining physical or mental capacity, one can no longer make medical or financial decisions. To ensure that they receive the care they need in the way they may have wanted and that the person does not make any crippling financial errors, the court will appoint someone to act as a guardian or conservator.
These issues are entirely avoidable when one signs durable powers of attorney when they still have the capacity to do so. You can consult with an estate planning lawyer ahead of time to ensure that your wishes are in writing, and they can become operative when necessary if and when the time comes.
If you need to establish a guardianship, you need an attorney to help with the legal process. You will have to present evidence to a judge that supports your case to persuade the judge to grant the guardianship. A guardianship attorney can represent you in the legal process at every step of the way. You are already going through a difficult time, and it can make things even harder if you try to handle this situation on your own.
The Differences Between Living Probate and Regular Probate
Living probate and regular probate are two different legal concepts. One involves care and management for a person who is in some form of physical and cognitive decline but is still living. The other refers to a process that changes the title of a deceased person’s assets after they pass away.
Both types of probate may require the same type of attorney, but the lawyer will perform entirely different functions in these cases. Similarly, both of these types of probate require a formal legal process. However, a guardianship case requires you to present evidence in court in front of a judge at a hearing. In contrast, a probate case demands a lot of paperwork and might only involve a court appearance if any matters are in dispute.
What Is Living Probate?
Living probate refers to a form of care and management for a person who is still living but did not have any plan or procedure in place at the time that they began to decline. It is necessary for someone to capably manage the affairs of the person and make decisions on their behalf, but there must be some type of formal relationship.
The person making these decisions must have the authority to do so. If some type of estate plan is already in place, that authority usually derives from a legally binding document. When there is no comprehensive estate plan, the authority must come from the court after a legal process and a judge’s approval or order.
Living probate is another term for the guardianship and conservatorship processes. One may no longer be able to make their own decisions, and the court needs to appoint someone to serve in this role. Petitioners must meet a high burden before the court will grant guardianship or conservatorship. Then, the person seeking to act as the guardian must show the court they are qualified to serve in this capacity.
What Is a Guardianship?
A guardianship is the most common form of living probate. A court may order guardianship when a person can no longer manage their own affairs or make their own decisions. A guardianship only needs to be considered when there are no prior arrangements to address these situations. For example, the need for a guardianship can be eliminated entirely if one has a durable power of attorney signed before they began their physical or cognitive decline.
The first thing you need to show to obtain guardianship is that the person can no longer manage their own affairs. This may be easier to show in uncontested cases, but you should never just assume the judge will grant guardianship. This legal measure is a drastic one because someone will completely lose the right to manage their affairs, and a judge certainly does not take this lightly.
Then, the court will also need to determine that the person proposed as the guardian has the ability to manage these affairs. The court wants to see that the proposed guardian will be acting in the ward's best interests. You also need to show that the proposed guardian has the knowledge and ability to completely manage the affairs of another person.
Evidence You Need in a Guardianship Case
The court will only grant a guardianship after conducting a hearing to consider the matter. The person seeking the guardianship must meet their burden of proof, both to persuade the court that the arrangement is necessary and that they are the one who is qualified to act in this capacity. You need to present evidence to persuade the judge.
Evidence in a guardianship case may include:
- Medical evidence from a doctor detailing the person’s condition and showing they no longer should make decisions for themselves
- Witness statements from people who have observed the person who has declining capacity that corroborates what the doctor is describing as their condition
- Evidence of some decisions that the proposed ward has made that may not have been sound and in their own best interests
- Letters of recommendation from people who have personal knowledge of the situation
The court may also order a functional assessment to determine whether guardianship is in the best interests of the proposed ward. A qualified individual may assess the ward's health and determine their ability to make their own decisions.
If you are seeking a guardianship, you must meet your burden of proof to persuade the court to grant it. You must show by a preponderance of the evidence that the guardianship is necessary. This legal standard means that it is more likely than not that guardianship is necessary. It is a lower standard than the beyond a reasonable doubt used in criminal cases.
What Is a Conservatorship?
A conservatorship is a more limited form of guardianship. When one is appointed as a guardian, they will make many more decisions and have control over practically all aspects of the ward’s life. A conservatorship is more limited to financial decisions for those unable to manage their affairs.
One does not necessarily need to be physically sick for the court to grant a conservatorship. They might have other issues that keep them from making prudent financial decisions. For example, pop star Britany Spears was involuntarily placed in a conservatorship, with her father appointed as the conservator, when a court found her unable to properly manage her own finances.
What Is Regular Probate?
The process that you think of as probate handles entirely different matters under different circumstances. This process describes the retitling of estate assets before they can be distributed to the beneficiaries of the estate. These assets must go through a court process before the beneficiaries can take ownership of their share of the estate property.
The following happens as part of the probate process:
- The executor opens the probate process by filing a notification in probate court (which is located in the county where the person was living before they died)
- The will that the deceased person drafted will be filed with the court and authenticated (this step can be far more difficult than you think because one or more interested parties may contest the validity of the will)
- The executor will publish notice of the probate proceedings, so creditors who are owed money can come forward to file claims
- The creditors will file claims against the estate and be paid what they are owed before the property can be distributed
- The executor will inventory the assets that are in the estate
- The executor will manage the estate while it is going through the probate process, selling or managing assets as they see fit in line with their fiduciary duties
- The assets will be retitled into the names of the beneficiaries, or the proceeds of the estate will be divided
- The estate will be declared settled and closed by the court at the conclusion of the probate process
You should hire a probate lawyer to help guide you through the process. The executor has quite a few responsibilities, and they can even be personally liable if they breach their fiduciary duties. A probate lawyer can also represent interested parties so they can participate in the proceedings.
Legal Planning Now Can Avoid Difficulties Later
You want to avoid living probate entirely if you are able. If your family needs to go through this process, it can cause them a considerable amount of stress. Not only will they be tasked with caring for you, but they also need to go through a legal process to obtain court approval for a formal legal arrangement.
Some family members might disagree with the choice of a guardian or even stand against the entire need for the guardianship altogether. High-charged disputes can arise, which can complicate the legal process. It can be too much for a family to bear, so you should try to avoid placing them in that situation in the first place.
You can meet with an estate planning attorney now to begin working on a long-term solution, which can protect your family and provide you with certainty and peace of mind. Perhaps the most important document you can have is a durable power of attorney, which will grant decision-making authority to someone else. They can then make financial and medical decisions for you as necessary.
You have the right to shape the power of attorney and allow it to grant certain powers to your agent. For example, you may designate one person who may make medical decisions and another who can make financial decisions. If your assets are going to be placed in a trust, the trustee will make financial decisions to manage the trust assets.
You should also draft an advanced medical directive stating your wishes for your medical care. These are signed on paper, so your wishes can still be considered when you can no longer effectively articulate them yourself. For example, your advanced medical directive may state that you do not want life-saving care under certain circumstances.
It is essential that you speak with an estate planning lawyer now because it may be too late to do so in the future. You need to have the physical and mental capacity to sign a legally binding document. If you wait until your health has declined to a certain point to begin an estate plan, the documents you sign can be invalidated later if they are challenged in court.
You need to think about an estate plan when times are good because you cannot work on it when times become bad. There is such a thing as a point when it becomes too late to do anything.
Schedule Your Consultation with a Probate Lawyer
Did your loved one pass away? Are they struggling to manage their lives due to incapacity, and you suspect a guardianship is necessary? In either situation, you want to hire the right probate attorney to protect your family. Neither probate nor living probate are simple matters, and everyone involved benefits from the right legal representation.
In your consultation, the probate lawyer can review your situation and advise whether you need their services. They will then map out the course of action, depending on your circumstances and needs. Call a local probate attorney today.