Taking steps to prevent guardianship and conservatorship—and the stress and expense of living probate—is a relatively pain-free process. This is true if handled well ahead of time. Call us today to review the parts of your estate plan that may need updating to ensure the best possible outcome for you and your loved ones. We can quickly ensure that your plan is comprehensive, current, and built to protect your wishes.
A lot of people think of estate planning as something that only matters after they die. In reality, a strong estate plan also protects you while you are alive—especially if you ever become unable to manage your own personal, medical, or financial decisions.
Thoughtful incapacity planning can keep judges, guardians, and conservators out of your day-to-day life. It leaves the decision-making power with the people you trust.
Why Incapacity Planning Matters
Incapacity can happen at any age, not just in later life. Nearly 29 percent of adults live with some form of disability. About 14 percent live specifically with a cognitive impairment. [1] The likelihood of losing capacity only increases with age. More than 30 percent of Americans over 65 have a disability. That number rises to more than half for those over 75. [2]
Dementia, stroke, or other cognitive and physical conditions can make it hard—or impossible—for someone to understand information, make informed decisions, or advocate for themselves. If there is no plan, a court may have to step in and appoint someone to take control of medical and financial decisions.
That is exactly what happened to Alex (not a real person but a very real scenario).
In his 40s, Alex signed a simple will that said who should receive his accounts and property when he died. He never updated it and never signed powers of attorney. In his late 70s, he developed Alzheimer’s disease. Because Alex had not legally given anyone authority to act on his behalf during incapacity, his family had to go to court. A judge appointed a guardian to make decisions for him—and the family had little say in who that person would be. This is sometimes referred to as “living probate” – and it is stressful, expensive, and avoidable with the right estate planning tools.
What Is a Guardian or Conservator?
If you lose the ability to manage your own affairs and have not planned ahead, a judge may appoint:
- A guardian of the person – to make decisions about your personal and medical care.
- A guardian of the estate – In Colorado and some other states, this is referred to a Conservator who may manage your money, property, and legal affairs.
The terminology varies by state. Some use “guardianship,” some “conservatorship,” some “plenary guardianship.” However, the idea is the same: the court hands control of your life to someone it chooses, under court supervision. Many people refer to this as living probate because it resembles probate—only it plays out while you are still alive.
Four Reasons to Prevent Guardianship and Conservatorship
Court involvement is meant to protect you, but relying on guardianship or conservatorship is rarely ideal. Here is why we generally aim to avoid it:
- High costs
Guardianship and conservatorship proceedings are not cheap. Attorney’s fees, court filings, ongoing reporting requirements, and professional evaluations all add up. Those costs are usually paid from your money and property, leaving less available for your care and for your loved ones later.
- Risk of family conflict
When the court has to pick who will be in charge, family members may disagree about who is best suited—or about what decisions should be made. Those disagreements can quickly become emotional, expensive legal battles. They strain relationships and shift the focus away from your well-being.
- Loss of privacy
Living probate is a court-supervised process. That often means your medical condition, financial details, and family disputes may become part of the public record. If Alex had planned ahead, he could have kept his care and finances private instead of having them aired in a public courtroom.
- Uncertainty and lack of control
Without clear legal documents, a judge has to guess what you would have wanted. The court will try to act in your “best interests,” but may:
- Appoint someone you never would have chosen
- Impose restrictions or require prior court approval for certain decisions
- Delay urgent financial or medical choices because of court schedules and procedures
By contrast, if you put your wishes in writing and name trusted decision-makers in advance, your plan—not the court’s—will control.
How to Build an Estate Plan That Avoids Living Probate
The good news: you can almost always prevent guardianship and conservatorship with the right estate planning tools. They should be put in place before there is a problem.
Here are key elements to include in your estate plan:
1. Durable powers of attorney
A comprehensive estate plan should include:
- Financial (general durable) power of attorney – lets you appoint a trusted person (your “agent”) to handle financial and legal matters for you. These include paying bills, managing investments, dealing with insurance, or signing legal documents.
- Medical (healthcare) power of attorney – authorizes someone you choose to make medical decisions and personal care decisions. They step in if you cannot communicate or make them yourself.
These documents:
- Keep decision-making in the hands of people you choose, not a judge
- Allow your agent to act quickly, without waiting for court approval
- Reduce confusion or fighting among family members about “who is in charge”
You can also use your powers of attorney to nominate your preferred guardian or conservator. This applies in case a court ever does have to get involved. While the judge makes the final decision, your written nomination carries weight and gives you a voice in the process.
2. Long-term care and advance healthcare planning
It is impossible to predict whether you will ever need long-term care, but you can plan for that possibility:
- Use an advance healthcare directive or living will to express your preferences about end-of-life care and major medical decisions.
- Work with your estate planning and financial advisors to explore strategies. These strategies may help protect your money and property from being completely consumed by long-term care costs.
- Clarify where you would prefer to receive care (at home, assisted living, nursing facility, etc.). Also, decide who should help manage those decisions.
When these wishes are written down and paired with properly drafted powers of attorney, your loved ones can focus on carrying out your plan instead of guessing—and you greatly reduce the risk of ending up in living probate.
Take the Next Step Now
Avoiding guardianship and conservatorship is much easier before there is a crisis. A relatively simple set of estate planning documents can:
- Keep control in your hands and with the people you trust
- Protect your privacy
- Reduce costs and conflict
- Provide clear guidance for your loved ones when they need it most
If it has been a while since you reviewed your estate plan—or if you do not have powers of attorney and incapacity planning in place—now is the time to act.
We can help you review your current documents, identify gaps, and ensure your estate plan is built to protect you and your loved ones if incapacity ever occurs.
[1] Disability Impacts All of Us Infographic, CDC (Apr. 14, 2025), https://www.cdc.gov/disability-and-health/articles-documents/disability-impacts-all-of-us-infographic.html.
[2] Aging and the ADA, ADA Nat’l Network, https://adata.org/factsheet/aging-and-ada (last visited Nov. 7, 2025).
