Many of us are familiar with the high price of going through the probate process after the loss of a loved one. Court costs, attorney’s fees, and other expenses can serve as a constant strain on the financial well-being of a decedent’s estate and the probate process is both time consuming and complicated. Oftentimes, a qualified estate planning attorney will recommend the use of a revocable living trust as an easier and less-costly alternative to probate for accomplishing the transfer assets after death.
But what about probate that takes place while an individual is still alive? Often termed “living probate,” this process occurs when a person (called a “ward”) is declared mentally incapacitated or incompetent, and court intervention is sought in order to appoint a guardian to act on that person’s behalf. This guardian is often empowered to make financial, legal, and healthcare related decisions for the ward for as long as the court determines is necessary.
Understandably, most people do not like the idea of their personal matters being handled by others and they especially loathe the idea of having no control over determining who will be selected to handle those matters should the need arise. Many people think that simply by granting a trusted loved one a durable power of attorney, they have adequately planned for this possibility. However, under Florida law, that is not always the case.
Section 709.08 of the Florida Statutes requires the suspension of a durable power of attorney upon the filing of proceedings in Florida court to determine a person’s incapacity. If that person if then found incompetent, the power is completely revoked unless the court holds otherwise. Thus, a person who is not granted power of attorney but nonetheless wants to exercise control over an individual’s assets needs only to file a court action in order to successfully hinder the powerholder’s authority.
A revocable living trust is not subject to this kind of legal constraint and thus should be utilized in conjunction with a durable power of attorney as well as designation of health care surrogate in order to accomplish a full and comprehensive estate plan. An individual who desires to plan for the possibility of incompetency should speak to an experienced trust attorney who can help them establish an estate plan that will completely meet their needs. Any form of probate, death or living, can be expensive, time-consuming, and hard on our loved ones. Contact an Attorney in Jacksonville to learn how you can protect yourself and your family now and in the future.