FAQ: Living Probate

Providing Answers To Living Probate Questions

• What is meant by “living probate”?
• Why can’t I avoid a living probate by giving a general durable power of attorney to a trusted family member?

What is meant by “living probate”?

It is possible that, prior to your death, you may become mentally disabled due to dementia, disease, stroke or accident.

Legally referred to as conservatorship or guardianship, a living probate is a legal proceeding in the probate court which is designed to protect a mentally disabled person who is unable to manage his or her financial affairs. It is the duty of the probate court to protect the disabled person’s assets and to appoint someone to manage and assume the disabled person’s financial affairs.

There are disadvantages to a living probate. Primarily, it creates expenses:

• Inasmuch as it is a court proceeding, a living probate often requires the services of an attorney who will prepare the necessary court documents and make court appearances.
• The court may require the filing of inventories and accountings, along with periodic reports, which may necessitate the hiring of an accountant.
• The conservator or guardian may be required to post a bond in order to qualify for service before the court.
• He or she may be also required to make periodic reports to the court during the period of disability and will often utilize the services of lawyers and accountants, as well as other professionals, throughout that entire period.

All these factors are very expensive to the estate.

As with a death probate, a living probate is a public proceeding which may result in a substantial invasion of privacy and loss of personal dignity.

Why can’t I avoid a living probate by giving a general durable power of attorney to a trusted family member?

Unfortunately, general powers of attorney are not always honored by banks, title companies, brokerage firms, and other financial institutions. These institutions have been increasingly fearful of the potential liability inherent in honoring such powers of attorney. Some have established their own specific requirements regarding powers of attorney. The requirements vary from one institution to another, but in general the older a power of attorney is, the less likely it is that an institution will accept it.

Also, the power of attorney, by its nature, is typically a general one and usually gives the designated agent full power and control to do anything with the disabled party’s assets. Without instructions on how the agent is to apply the funds, a general power of attorney can sometimes be abused.

Finally, even if you execute a power of attorney, there is no guarantee that you will not be taken before the probate court by a third party who seeks to have you declared incompetent and himself or herself appointed as your financial guardian. In such a case, a power of attorney would become useless. All too frequently, the general power of attorney causes more problems than it corrects.