2006 Code of Virginia § 37.2-1024 - Estate planning

37.2-1024. Estate planning.

A. In the order appointing a conservator entered pursuant to 37.2-1009 orin a separate proceeding brought on petition, the court may authorize aconservator to: (i) make gifts from income and principal not necessary forthe incapacitated person's maintenance to those persons to whom theincapacitated person would, in the judgment of the court, have made gifts ifhe had been of sound mind or (ii) disclaim property as provided in Chapter8.1 ( 64.1-196.1 et seq.) of Title 64.1. A guardian ad litem shall beappointed to represent the interest of the incapacitated person, andreasonable notice of the hearing shall be given to the incapacitated personand to all persons who would be heirs or distributees of the incapacitatedperson, if he were dead as of the date of the filing of the petition, orbeneficiaries under any known will of the incapacitated person. The court mayauthorize the hearing to proceed without notice to any beneficiary who wouldnot be substantially affected by the proposed gift or disclaimer. The courtshall determine the amounts, recipients, and proportions of any gifts of theestate and the advisability of any disclaimer after considering: (i) the sizeand composition of the estate; (ii) the nature and probable duration of theincapacity; (iii) the effect of the gifts or disclaimers on the estate'sfinancial ability to meet the incapacitated person's foreseeable health,medical care, and maintenance needs; (iv) the incapacitated person's estateplan; (v) prior patterns of assistance or gifts to the proposed donees; (vi)the tax effect of the proposed gifts or disclaimers; (vii) the effect of anytransfer of assets or disclaimer on the establishment or retention ofeligibility for medical assistance services; and (viii) other factors thatthe court may deem relevant.

B. The conservator may make a gift, not to exceed $100 to each donee in acalendar year and not to exceed a total of $500 per calendar year from suchincome and principal, without the requirements of a court-appointed guardianad litem, of notification to the incapacitated person or to any person whowould be an heir or distributee of the incapacitated person, if he were dead,or a beneficiary under any known will of the incapacitated person, and of acourt hearing. Prior to the making of such a gift, the conservator mustconsider conditions (i) through (viii) as set forth in subsection A of thissection and must also find that the incapacitated person has shown a historyof giving the same or a similar gift to a specific donee for the previousthree years prior to the appointment of the conservator.

C. The conservator may transfer assets of an incapacitated person or anincapacitated person's estate into an irrevocable trust where the transferhas been designated solely for burial of the incapacitated person or spouseof the incapacitated person in accordance with conditions set forth insubdivision A 2 of 32.1-325. The conservator also may contractually bind anincapacitated person or an incapacitated person's estate by executing apreneed funeral contract, described in Chapter 28 ( 54.1-2800 et seq.) ofTitle 54.1, for the benefit of the incapacitated person.

D. A conservator may exercise the incapacitated person's power to revoke oramend a trust or to withdraw or demand distribution of trust assets only withthe approval of the court for good cause shown, unless the trust instrumentexpressly provides otherwise.

(1997, c. 921, 37.1-137.5; 2003, cc. 253, 528; 2005, c. 716.)