The Nightmare of Living Probate

As Carolyn Henderson anxiously watched her husband's flickering vital signs on the Intensive Care Unit monitor, she considered the irony of their circumstances. When she and Kirk planned how they might spend their thirtieth wedding anniversary, this sickbed vigil was the farthest thing from
their minds. But then on the very day they planned to celebrate 30 years of marriage, Kirk Henderson, a robust, health-conscious, ex-pro football player in his mid-fifties, unexpectedly suffered a stroke. As the hours ticked by with no sign that Kirk would regain consciousness, Carolyn considered for the first time that he might not pull through.

Although Kirk didn't die, he hasn't fully recovered. Today, two years after his stroke, the aftermath of his illness has rendered him barely able to walk or use his right arm. His speech is slurred, his thinking processes are muddled, and he will probably need physical therapy for the rest of his life.
Carolyn tries not to dwell on the tragedies of her husband's illness, emphasizing instead the miraculous progress he has made in so many areas. But just when she starts to think things are returning to normal, she's reminded that in the eyes of the law, her husband is as good as dead.
Declared mentally incompetent in a court of law, Kirk Henderson no longer has the right to make any decisions for himself. He can't sign a check, conduct a financial transaction, or even decide how he wishes to be cared for.

When they least expected it, the Henderson’s discovered what insurance companies have been tying to tell us for years. For most of our lives, the greatest risk to our well-being isn't death. It's the ever-growing likelihood of becoming seriously ill or injured. And when illness or injury makes us
unable to manage our affairs for ourselves, we may face an ordeal nearly as debilitating as our disability itself. It's a legal process commonly called Living Probate, and for those who must endure it, it is often a living nightmare.

WHAT IS LIVING PROBATE?


Many people know that probate occurs when someone dies with a will in force, or intestate without a will. This legal process is so-called death probate, and it establishes the validity of the deceased's will (or when there is no will, determines the deceased's heirs). The probate process identifies and establishes values for the assets of the deceased; ensures that creditors are paid; sees the courts and attorneys get their fees for handling the probate; and lastly, distributes to the heirs whatever remains of the estate after all debts and expenses have been paid.

What most Americans don't know, however, is that they may find themselves in the midst of probate while they're still alive. This living probate ensnares many of those who become unable to make personal or financial decisions as a result of serious injury or debilitating illness.
Few can argue with the idea behind living probate. Its goal is to protect an individual who can no longer protect himself or herself, and it seeks to identify the person or persons best suited to take over the individual's financial affairs and personal care. That's the theory. But in practice, living
probate can be a costly, time-consuming, bureaucratic and public process that often achieves an outcome vastly different from what the individual would have wanted, just like death probate.
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