Our probate services include estate planning (wills, advance directives and durable powers of attorney) and intervention proceedings (litigation concerned with the appointment of guardians and conservators for incapacitated individuals). We frequently act as counsel for persons involved in these cases. We also have served as the court-appointed guardian and conservator for incapacated individuals.
A will is a legal document that allows you to direct who will inherit your possessions. It is the only means by which you can express how your assets are to be distributed upon your death. If you die without a will, state law determines who inherits your possessions without regard to your wishes or your heirs’ needs. A will also allows you to select a relative or friend to be the guardian of your minor children when you die. Without a will, the court will appoint the guardian. You can amend your will at any time. You should review your will from time to time and especially if your marital status changes. Everyone should have a will.
An advance directive or “living will” tells your doctor the nature and extent of medical treatment you wish to receive if you are unable to make or communicate such decisions. Having an advance directive is especially important should you develop a condition that will result in death without the use of life-sustaining procedures. Life-sustaining procedures are those that serve only to prolong the dying process. Under such circumstances, it is critically important for your doctor to know if, and when, you want such measures withheld or withdrawn.
DURABLE POWER OF ATTORNEY
Should you become legally incompetent, a durable power of attorney allows you to give a friend or relative permission to make decisions for you. One is deemed legally incompetent if he is physically or mentally unable to handle his personal, business and financial affairs on his own. Incompetence can arise from a number of causes, including illness (such as Alzheimer’s Disease and dementia), stroke or serious injury. Such events can occur at any time and at any age. It is therefore very important that you have a durable power of attorney.
An intervention proceeding is a legal action involving the appointment of a guardian, conservator or both for an incapacitated individual (called a ward). An incapacitated individual is an adult who is unable to manage his financial affairs or attend to his personal and medical needs on his own. A guardian is sometimes appointed by the court to make personal and medical decisions for an incapacitated individual. A conservator is a person appointed by the court to manage a ward’s finances.
Anyone interested in the welfare of a purportedly incapacitated adult may file a petition asking for the appointment of a guardian or conservator. While not required, a lawyer is often hired by the petitioner to represent him in the proceeding. After the petition is filed, the court appoints a lawyer to represent the person who is the “subject” of the action. The lawyer’s role is to assure that the subject’s rights are protected. The subject must attend the hearing unless there is a good reason for his absence. He also has the right to object to the petition, present evidence and question witnesses. Before appointing a guardian or conservator, the court must find, by clear and convincing evidence, that the subject is incapacitated. Normally, the court conducts the hearing about 45 days after the petition is filed. In emergency or life-threatening situations, a temporary guardian can be appointed immediately.