What is “Living Probate?”

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Explaining living probate:

Living Probate is a term used to describe what happens to those who become mentally incapacitated without proper planning in place. Living probate is the legal proceeding required to put a guardianship in place for a person who can no longer manage his own affairs or make decisions about his care. If a person cannot take care of himself because of mental or physical impairments brought on by age, illness, or injury, his loved ones may need to go before a judge and ask that the court appoint a conservator or guardian. The court has the authority to appoint one or more people to handle decisions about the incapacitated person’s life.

In that case, another person must be appointed to make financial and other decisions for the incapacitated person because he or she is no longer able to make those alone. This process of arranging for someone to make decisions for the incapacitated person is called a guardianship or conservatorship, depending on the jurisdiction, and is a process supervised by a probate court.

In some jurisdictions, a “guardian” is appointed to oversee decisions pertaining to the incapacitated person’s body, while a “conservator” is appointed to oversee decisions pertaining to the person’s financial affairs.

Why Is It Called “Living Probate”?

Except in certain cases, your will must go through probate after your death. This process certifies your will and appoints an executor to oversee paying your final bills and distributing your remaining assets. If a person is no longer able to make decisions about their care or manage their own affairs, the process to appoint a guardian works in a similar manner. The court will need to look into your mental and physical ability to make decisions, voice opinions, and take care of financial matters. If it determines you are not competent to handle matters on your own, the court will appoint an executor — or guardian — to oversee your care and deal with your assets as needed.

The Living Probate Process

The living probate process begins when a loved one raises concerns a person may no longer be competent enough to make decisions on his own. Unless there is a durable power of attorney as a part of their estate plan, the courts must get involved.

If the evidence supports the family member’s claim, the court will:

  • Declare the person in question mentally incompetent;
  • Appoint a guardian to make medical and care decisions, as well as ensure the person in question receives quality care daily; and
  • Appoint a guardian or conservator to oversee the person’s financial affairs. (Often, this is the same person, such as when the individual in question is married with a competent spouse. It does not have to be the same person, however.)

Avoiding Living Probate

The living probate process does not always go smoothly. You will be much better off if you have a plan in place before you need one. A durable power of attorney and other estate planning tools can help you avoid living probate.

If you must go through living probate in New Jersey, you will want an estate attorney on your side. The process of having the courts assign a guardian can take time and cost the person’s family a lot of money. It also requires the guardian to file regular accounting reports and other information, even if the person she cares for is an immediate family member.