Avoid Living Probate: How to Keep Guardians and Conservators Out of Your Estate

Many people create an estate plan believing it only matters after death. In reality, one of the most valuable benefits of estate planning is the protection it provides while you are still alive—especially if you become unable to manage your own affairs.

Without proper planning, incapacity can trigger court involvement through guardianship or conservatorship proceedings, often referred to as living probate. With a comprehensive estate plan, this outcome is usually avoidable.

Planning for Incapacity

Incapacity means the inability to manage personal, financial, or medical decisions due to a mental or cognitive condition. This can happen at any age. Nearly 29% of adults live with some form of disability, and about 14% experience cognitive impairment[1]. Among adults over 75, that number rises to more than 50%[2].

Common causes of incapacity include dementia, Alzheimer’s disease, stroke, or other age-related cognitive decline. When incapacity occurs without a clear legal plan in place, families are often left scrambling—uncertain who has authority to act or what their loved one would have wanted.

A comprehensive estate plan allows you to choose decision-makers in advance, protect your privacy, and ensure your wishes are honored without court involvement.

A Common (and Avoidable) Scenario

Alex created a simple will in his 40s that outlined who would receive his property after death. Years later, after developing Alzheimer’s disease in his late 70s, his family discovered there were no documents authorizing anyone to manage his finances or make healthcare decisions.

Because Alex had not planned for incapacity, the court had to appoint a guardian to act on his behalf—introducing cost, delay, and stress during an already difficult time.

What Is a Guardian or Conservator?

A guardian or conservator is a person appointed by the court to make decisions for someone who has lost capacity and did not legally appoint an agent ahead of time.

• A guardian of the person makes medical and personal care decisions
• A guardian of the estate manages financial and legal matters

Terminology varies by state, but the result is the same: the court—not you—decides who is in charge. These proceedings are often called guardianship, conservatorship, or informally, living probate.

Four Reasons to Avoid Living Probate

While courts aim to act in an incapacitated person’s best interests, guardianship and conservatorship come with significant downsides:

1. High costs
   Court filings, attorney fees, ongoing reporting requirements, and supervision expenses can quickly drain financial resources.
2. Family conflict
   Disagreements over who should serve—or how decisions should be made—can escalate into emotional and expensive disputes.
3. Loss of privacy
   Living probate is public. Personal, medical, and financial details often become part of the public record.
4. Lack of control and clarity
   Without legally documented wishes, the court must guess what you would have wanted and may appoint someone you would not have chosen.

How to Structure Your Estate Plan to Avoid Guardianship

The good news is that living probate is largely preventable with proactive planning.

Powers of Attorney

Durable powers of attorney allow you to appoint trusted individuals to act on your behalf if you become incapacitated.

• A healthcare power of attorney authorizes medical and personal care decisions
• A financial power of attorney allows an agent to manage finances, pay bills, handle investments, or oversee business matters

These documents keep decision-making out of the courtroom and in the hands of people you trust. They can also include nominations for a guardian or conservator, giving the court clear guidance if involvement ever becomes necessary.

Long-Term Care and Advance Planning

Incorporating long-term care planning into your estate plan helps ensure care decisions align with your values and goals. Advance directives allow you to outline preferences for medical treatment and end-of-life care, while also helping protect assets from unnecessary depletion.

Take the Next Step

Avoiding guardianship, conservatorship, and living probate is far easier—and far less stressful—when addressed early. A thoughtful estate plan protects your independence, your privacy, and your loved ones.

👉 Schedule a review today to ensure your estate plan is current, comprehensive, and built to protect you through every stage of life. Our estate planning packages address these living issues, so you know you’re covered.

To learn more about estate planning, keep an eye on our Events page located at: https://www.wagnerlegalmn.com/events/.

If you’re ready to start being proactive about your estate plan, contact us to get started.

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[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).