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What is Living Probate?

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Living probate is the guardianship process that will take place if you become incapacitated and you do not have a legal document called a power of attorney.  Your loved ones will have to go to court in order to manage your healthcare and to gain access to your money.  Living probate is the court proceeding designed to protect the mentally disabled.  What happens during the guardianship proceeding?  It begins with the filing of a Petition.  The Petition states the facts and circumstances of your situation.  Family member’s names, addresses and phone numbers are included, as well as details of your assets, such as your home, your bank accounts, your retirement accounts and your sources of income.  Attached to the Petition are two letters from your physicians stating that you are unable to manage your financial affairs and make your own health care decisions.

After the Petition is filed with the Circuit Court, a show cause order is issued.  An attorney is appointed to represent the alleged disabled person.  The Petitioner mails a copy of the Petition and letters from the doctors to all interested parties – usually your family members, the local Department of Social Services and the Social Security Administrator.  The court appointed attorney then files an answer to the Petition and presents the court with a report.  The attorney will talk to the interested parties and meet with the alleged disabled person.  The interested parties have 20 days to contest the proceeding.  The last step is a mandatory court hearing.  Often the court appointed attorney waives the alleged disabled person’s appearance in court.  The hearing is usually 10-15 minutes long.  The court appointed attorney will give their report to the Judge and if there are no issues and no one contests the proceeding, the Judge will grant the Order for Guardianship of the person and property.

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