What Is Living Probate — and How Can You Avoid It?

You probably know that probate is a court-supervised process that some estates and some assets go through after a person passes away. But living probate is an entirely different legal concept and process that involves proceedings in probate court to appoint a conservator and guardian for a person who is legally incapacitated. Living probate can occur if you don’t prepare for the possibility of incapacity by putting the right legal documents in place while you are legally competent.

While it may be difficult to consider the possibility of incapacity, doing so when you have legal capacity is absolutely essential. After incapacity occurs, it is too late to take the necessary steps to prevent living probate. Incapacity can occur at any time due to an accident or medical crisis. Even temporary incapacity may necessitate having another person make financial or personal decisions on your behalf. If you haven’t taken action to avoid living probate, your family may need to initiate probate court proceedings to get the legal authority to care for you and manage your finances.

What Is Living Probate?

As people age, it is completely natural for mental ability to decline. If a person reaches the point where they cannot properly care for themselves and their financial matters, a court may find the person to be legally incapacitated. Incapacity may also occur because of a medical crisis or accident, or for other reasons. Michigan law defines an incapacitated person as “an individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.”

If an incapacitated individual has not planned for incapacity by putting legal documents in place to designate persons who can make decisions on their behalf if incapacity occurs, family members must petition the probate court for appointment of a conservator and guardian for the individual. This court process means the incapacitated individual must go through living probate.

Conservatorship and guardianship are probate court processes governed by Michigan statutes. They require filing a petition with the probate court. Typically, the petition is filed by a family member. Before a judge appoints a conservator or guardian, the petitioner must provide evidence of the incapacity of the individual who is the subject of the petition. Any interested person may participate in the proceeding.

Michigan courts appoint conservators and guardians only as a last resort. The court may hold a hearing to determine whether the individual meets the legal definition of incapacitated individual and whether appointment of a conservator and guardian is necessary to protect the person and their property. Michigan law requires the judge to make these determinations before appointing a conservator or guardian.

Contested Conservatorship and Guardianship Proceedings

In some cases, family members may disagree on whether an appointment is necessary or on who should be appointed as conservator or guardian. If anyone — including the individual who is the subject of the proceeding — objects to the appointment, the conservatorship or guardianship becomes a contested proceeding. A contested court action causes family disruption, as well as time delays and additional expenses and costs, at a time when a loved one needs immediate attention and care.

A family should avoid contested conservatorship and guardianship proceedings whenever possible. In many cases, a knowledgeable probate litigation attorney can work with family members to avoid unnecessary delays and costs in getting help for a loved one facing incapacity.

Conservatorship and guardianship are legal proceedings with specific requirements under Michigan law. Representation by an experienced probate litigation attorney is absolutely essential in both types of court actions.

How Can You Avoid Living Probate?

You can avoid living probate by planning ahead for possible incapacity. When you put a complete estate plan in place, your plan includes documents that avoid conservatorship and guardianship proceedings in the event you become incapacitated in the future.

Many estate plans include durable powers of attorney (DPOAs) to prevent living probate. In Michigan, these documents include a durable financial power of attorney and a durable health care power of attorney, which also is called a patient advocate designation or advance directive.

In your durable financial power of attorney, you designate a trusted person to manage your finances and make financial decisions on your behalf if you become incapacitated. Your agent under the financial DPOA has only the authority that you provide in the document.

Your health care DPOA gives legal authority to someone you trust to make medical and health care decisions on your behalf in the event of incapacity. You also may express your end-of-life wishes in the document.

If your estate plan includes a living trust, you may not need a separate durable financial power of attorney. To determine the best way to address potential future incapacity in your estate plan, it is essential to talk with an experienced Michigan estate planning attorney.

Talk With Our BRMM Michigan Probate Litigation Attorneys

If you need assistance with a situation that may involve a conservatorship or guardianship proceeding in Michigan probate court, our respected litigation lawyers at BRMM are here to help. Our substantial Michigan probate litigation experience positions us extremely well to help clients who encounter issues with potential incapacity of a family member. If you wish to take the necessary steps to avoid living probate, our trusted estate planning and elder law attorneys can provide assistance.

At BRMM, we’ve been providing legal services to clients for more than 40 years. Our compassion, credentials, and commitment set us apart. Call us at (248) 494-4577 to talk with us about matters relating to estate administration or other areas of concern. We serve clients in Troy, Oakland County, and surrounding areas, as well as out-of-state clients with estate and probate matters arising in Michigan.

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