If you have failed to plan for your personal incapacity by designating an agent to act as your Attorney in Fact under a Durable Power of Attorney or as an Agent under a Health Care Proxy, the person who will make these personal decisions on your behalf will be determined not by you, but by a Judge in the Probate Court. Many people recognize the benefits of having their estate avoid the Probate Court upon death, but most people forget that it is equally important to avoid the Probate Court in the event of an illness or incapacity during their lifetime.

In the event that you are incapacitated or gravely ill such that you cannot make decisions for yourself and you do not have either a Heath Care Proxy or a Durable Power of Attorney , your spouse, child, sibling or a friend will have to petition the Probate Court to be named your Guardian and Conservator. There is also the possibility that the Probate Court will appoint someone that is unfamiliar with you and your needs, something that can happen without proper planning.

The Probate Court will appoint a Guardian who will be charged with the duty of making personal decisions on your behalf. Those decisions are very personal and include health care choices, personal care choices, and decisions for your long term medical care. In addition, the Probate Court will appoint a Conservator of your estate; this person will be charged with managing your finances. Both of these court appointed agents will be required to get permission from the Probate Court to take action on many matters, including matters involving your property. As a result, the Probate Court has an unnecessarily high level of control over your well-being and assets, which is also costly as the fees and costs from the Probate Court’s review will come from your assets.

To protect yourself in the event of incapacity and to ensure that decisions regarding your health care and finances will be made in your best interest by a friend or family member of your choosing, consult with a Probate attorney at Baker, Braverman & Barbadoro, P.C. to get your Health Care Proxy and Durable Power of Attorney drafted today. – Christopher Sullivan.

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