Many people who take the initiative to create an estate plan believe it is solely about distributing assets after death. In reality, a well-designed estate plan does much more. It is also intended to protect you during your lifetime by preparing for situations in which you may no longer be able to manage your own affairs.
Preparing for Incapacity
Incapacity refers to a person’s inability to manage personal or financial matters due to a mental condition. This can occur at any age. Nearly 29 percent of adults live with some form of disability, and approximately 14 percent experience cognitive impairment. The risk increases significantly as people grow older: more than 30 percent of Americans over age 65 have a disability, and that figure rises to over 50 percent for those age 75 and older.
As people age, physical or cognitive decline often affects their ability to handle medical, financial, or legal decisions. Conditions such as dementia, stroke, or other age-related cognitive disorders can make it difficult—or impossible—for someone to make informed choices or advocate for themselves. Through proactive estate planning, you can decide in advance how your affairs will be handled if you become incapacitated. Without these safeguards, a court may need to step in and appoint someone to act for you. At that point, earlier planning decisions—or the absence of them—can have lasting consequences for your quality of life, healthcare, and financial stability.
Consider the following example:
In his 40s, Alex created a basic estate plan that consisted of a simple will outlining who would inherit his assets after his death. He never revisited or updated his plan. Years later, in his late 70s, Alex was diagnosed with Alzheimer’s disease. His family was suddenly unsure who had the authority to make decisions for him or what his wishes were regarding healthcare and finances. Because Alex had never legally named someone to act on his behalf in the event of incapacity, the court had no choice but to intervene and appoint a guardian.
What Is a Guardian or Conservator?
A guardian or conservator is someone appointed by the court to make decisions for an individual who has lost capacity and did not designate a decision-maker in advance through proper estate planning. A guardian or conservator of the person handles personal and medical decisions, while a guardian or conservator of the estate oversees financial and legal matters.
Terminology varies by state, but the responsibilities are generally the same. Likewise, the legal process may be called guardianship, conservatorship, or plenary guardianship. Collectively, these proceedings are often referred to as “living probate.”
Four Reasons to Avoid Guardianship or Conservatorship
Although courts aim to act in the best interests of an incapacitated individual, relying on a court-appointed guardian or conservator is a poor substitute for advance planning. Here’s why:
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Costly proceedings. Living probate can be expensive. Court costs, attorney fees, and ongoing oversight can significantly reduce the value of your assets—money that could otherwise support your care or pass to loved ones.
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Potential for family disputes. When a court must choose who will manage someone’s affairs, family members may disagree about who should serve or how decisions should be made. These disagreements can escalate into emotional and costly legal conflicts, placing added strain on families at an already difficult time.
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Loss of privacy. Guardianship and conservatorship proceedings are court-supervised and part of the public record. As a result, sensitive medical and financial information may become accessible to others. Had Alex planned ahead, he could have spared his family the stress and expense of court involvement—and protected his personal affairs from public scrutiny.
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Uncertainty and lack of control. Without clear legal documents expressing your wishes, courts are left to guess what you might have wanted. If Alex had named trusted agents under healthcare and financial powers of attorney and documented his preferences for medical care, his affairs would have been managed exactly as he intended. Instead, the court appointed someone on his behalf and imposed oversight that could limit decision-making or require court approval for certain actions.
Structuring Your Estate Plan to Avoid Living Probate
The good news is that living probate is largely preventable. A properly structured estate plan can keep decision-making in the hands of people you trust:
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Powers of attorney. Durable powers of attorney allow you to appoint trusted individuals—known as agents—to act on your behalf if you become unable to manage your medical or financial affairs. These documents ensure that your chosen representatives, rather than a judge, make important decisions for you. Powers of attorney can also include nominations for a guardian or conservator if court involvement ever becomes unavoidable. While the judge has final authority, naming your preferred person greatly increases the likelihood that your wishes will be followed.
Different types of powers of attorney serve different roles. A healthcare power of attorney authorizes someone to make medical and personal care decisions if you cannot. A general durable (financial) power of attorney allows a trusted person to manage financial matters such as paying bills, overseeing investments, or handling business transactions. Together, these documents promote continuity, reduce family conflict, and preserve your autonomy.
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Long-term care planning. While you may never require long-term care, incorporating a strategy into your estate plan offers reassurance and clarity. Advance directives can outline your preferences for medical treatment and end-of-life care. Planning ahead may also help preserve your assets by reducing the financial impact of healthcare costs, ensuring more of your estate passes to your intended beneficiaries.
Avoiding guardianship, conservatorship, and the stress and expense of living probate is far easier when planning is done early. Contact us today to review your estate plan and identify any updates that may be needed. We can help ensure your plan is complete, current, and designed to protect both you and your loved ones—no matter what the future holds.