2006 Code of Virginia § 55-34.10 - Determination of incapacity; effect

55-34.10. Determination of incapacity; effect.

The custodial trustee shall administer the custodial trust as for anincapacitated beneficiary if (i) the custodial trust was created under 55-34.5, (ii) the transferor has so directed in the instrument creating thecustodial trust, or (iii) the custodial trustee has determined that thebeneficiary is incapacitated. A custodial trustee may determine that thebeneficiary is incapacitated in reliance upon (i) previous direction orauthority given by the beneficiary while not incapacitated, includingdirection or authority pursuant to a durable power of attorney, (ii) thecertificate of the beneficiary's physician, or (iii) other persuasiveevidence. On petition of the beneficiary, the custodial trustee, or otherperson interested in the custodial trust property or the welfare of thebeneficiary, the court shall determine whether the beneficiary isincapacitated. Absent determination of incapacity of the beneficiary, acustodial trustee who has reason to believe that the beneficiary isincapacitated shall administer the custodial trust in accordance with theprovisions of this chapter applicable to an incapacitated beneficiary.

If a custodial trustee for an incapacitated beneficiary reasonably concludesthat the beneficiary's incapacity has ceased, or that circumstancesconcerning the beneficiary's ability to manage property and business affairshave changed since the creation of a custodial trust directing administrationas for an incapacitated beneficiary, the custodial trustee may administer thetrust as for a beneficiary who is not incapacitated.

Incapacity of a beneficiary does not terminate (i) the custodial trust, (ii)any designation of a successor custodial trustee, (iii) rights or powers ofthe custodial trustee, or (iv) any immunities of third persons acting oninstructions of the custodial trustee.

(1990, c. 264.)

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