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

Many people focus on estate planning as a way to manage what happens after their death, but a truly comprehensive estate plan also protects you while you are alive.

Planning for incapacity—the inability to manage your personal, financial, or medical affairs due to illness, injury, or cognitive decline—is an essential part of ensuring your wishes are respected, and your loved ones are spared unnecessary stress.

Why Planning for Incapacity Matters

Incapacity can occur at any age, though the likelihood increases with time. Nearly 29 percent of adults live with some form of disability, and about 14 percent live with a cognitive impairment.1 By age 75, more than half of Americans experience some form of decline that may affect decision-making or self-care.2

Without planning, a court may have to appoint a guardian or conservator (sometimes referred to as “living probate”) to manage your affairs. This can have far-reaching consequences for your lifestyle, medical care, and financial security.

Example: Alex created a simple will in his 40s, but did not update it over time. In his late 70s, he developed Alzheimer’s disease. Because he had not legally designated someone to act on his behalf, his family faced uncertainty and had to go to court, which appointed a guardian to manage his affairs.

Understanding Guardians and Conservators

A guardian or conservator is someone appointed by the court to make decisions on behalf of an incapacitated person. Guardians of the person handle personal and medical matters, while guardians of the estate manage financial affairs.

While courts aim to act in the best interests of the incapacitated individual, relying on a court-appointed guardian is costly, time-consuming, and can create conflict among family members. It also exposes private medical and financial matters to public scrutiny and may result in decisions made by someone you would not have chosen.

Avoiding Living Probate Through Comprehensive Planning

There are several key tools to prevent court involvement and maintain control over your affairs:

• Powers of Attorney: Durable powers of attorney allow you to appoint trusted individuals to manage your financial and medical matters if you become incapacitated. You can also nominate a preferred guardian or conservator to guide the court if formal intervention becomes necessary. These documents give you control, reduce family conflict, and keep decisions in the hands of people you trust.
• Advance Directives: These documents let you express your wishes regarding medical care and end-of-life treatment, ensuring your healthcare decisions reflect your values.
• Trusts: Revocable living trusts provide a powerful way to manage your assets during incapacity and after death. By placing your property into a trust, you designate a successor trustee to step in immediately if you are unable to act. This avoids the need for a court-appointed guardian or conservator, keeps your affairs private, and ensures your financial and personal matters are handled exactly as you intend.
• Long-Term Care Planning: Incorporating long-term care planning into your estate plan helps protect your assets from being depleted by medical expenses and ensures your care aligns with your wishes.

By combining these tools, you can avoid living probate, protect your privacy, and ensure your affairs are managed by people you trust—not a court you have never met.

Take Action Now

Avoiding guardianship and conservatorship is much easier when you plan ahead. Strauss Attorneys can help you review and update your estate plan, including powers of attorney, trusts, and long-term care provisions, to ensure it fully protects your wishes and your loved ones.

Contact us today to schedule a consultation and make sure your estate plan is comprehensive, current, and ready for the unexpected.

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).