                                 CODE OF VIRGINIA

ESTATE PLANNING (§ 64.2-2023)

A. In the order appointing a conservator entered pursuant to &#xA7; 64.2-2009 or
in a separate proceeding brought on petition, the court may for good cause shown
authorize a conservator to (i) make gifts from income and principal of the
incapacitated person&#8217;s estate not necessary for the incapacitated
person&#8217;s maintenance to those persons to whom the incapacitated person
would, in the judgment of the court, have made gifts if he had been of sound
mind, (ii) disclaim property as provided in Chapter 26 (&#xA7; 64.2-2600 et
seq.), or (iii) create a revocable or irrevocable trust on behalf of an
incapacitated person with terms approved by the court or transfer assets of an
incapacitated person or an incapacitated person&#8217;s estate to a trust.

B. In a proceeding under this section, a guardian ad litem shall be appointed to
represent the interest of the incapacitated person. Notice of a proceeding under
this section shall be given pursuant to Chapter 8 (&#xA7; 8.01-285 et seq.) of
Title 8.01 and the Rules of Supreme Court of Virginia to: (i) the incapacitated
person and the incapacitated person&#8217;s spouse and children, (ii) all
beneficiaries named in any known will of the incapacitated person, (iii) the
incapacitated person&#8217;s intestate heirs determined as if the incapacitated
person had died intestate on the date of the filing of the petition, and (iv)
all other interested persons. The court may authorize the hearing to proceed
without notice to any person who would not be substantially affected by the
proceedings. For the purposes of this section, the beneficiaries and intestate
heirs shall be deemed possessed of inchoate property rights. Unless otherwise
represented, a minor, incapacitated, or unborn individual, or a person whose
identity or location is unknown and not reasonably ascertainable, may with the
approval of the court be represented and bound by another having a substantially
identical interest with respect to the will proceeding under this section, but
only to the extent that there is no conflict of interest between the
representative and the person represented.

C. The court shall determine the amounts, recipients, and proportions of any
gifts of the estate, the advisability of any disclaimer, whether good cause
exists to create a trust or transfer assets, and whether to approve the trust
terms after considering (i) the size and composition of the estate; (ii) the
nature and probable duration of the incapacity; (iii) the effect of the gifts,
disclaimers, trusts, or transfers on the estate&#8217;s financial ability to
meet the incapacitated person&#8217;s foreseeable health, medical care, and
maintenance needs; (iv) the incapacitated person&#8217;s estate plan and the
effect of the gifts, disclaimers, trusts, or transfers on the estate plan; (v)
prior patterns of assistance or gifts to the proposed donees; (vi) the tax
effect of the proposed gifts, disclaimers, trusts, or transfers; (vii) the
effect of any transfer of assets or disclaimer on the establishment or retention
of eligibility for medical assistance services; (viii) whether to require,
during the lifetime of the incapacitated person, that the trustee of any trust
created or funded pursuant to this section post bond, with or without surety, or
provide an accounting as set forth in &#xA7; 64.2-1305; and (ix) other factors
that the court may deem relevant.

D. A commissioner of accounts for the jurisdiction where a conservator qualifies
may authorize the same gifts under the same circumstances as the circuit court
may authorize under subsection C, except that (i) the total gifts authorized in
a calendar year shall not exceed $35,000 and (ii) the commissioner shall report
to the court his determination based upon consideration of clauses (i) through
(ix) set forth in subsection C. The provisions of subsection B shall not apply
to proceedings before the commissioner, but the commissioner shall give
reasonable written notice of the scheduled hearing date to any person who would
be substantially affected by the proceedings. The commissioner may provide
notice to a minor by mail to the duly qualified guardian of the minor or, if
none exists, a custodial parent of the minor who is also not the conservator.

E. If the gifts by the conservator under clause (i) of subsection A do not
exceed $200 to each donee in a calendar year and do not exceed a total of $1,000
in a calendar year, the conservator may make such gifts without a hearing under
this section, the appointment of a guardian ad litem, or giving notice to any
person. Prior to the making of such a gift, the conservator shall consider
clauses (i) through (ix) set forth in subsection C and shall also find that the
incapacitated person has shown a history of giving the same or a similar gift to
a specific donee for the previous three years prior to the appointment of the
conservator.

F. The conservator may transfer assets of an incapacitated person or an
incapacitated person&#8217;s estate into an irrevocable trust where the transfer
has been designated solely for burial of the incapacitated person or spouse of
the incapacitated person in accordance with conditions set forth in subdivision
A 2 of &#xA7; 32.1-325. The conservator also may contractually bind an
incapacitated person or an incapacitated person&#8217;s estate by executing a
preneed funeral contract, described in Chapter 28 (&#xA7; 54.1-2800 et seq.) of
Title 54.1, for the benefit of the incapacitated person.

G. A conservator may exercise the incapacitated person&#8217;s power to revoke
or amend a trust or to withdraw or demand distribution of trust assets only with
the approval of the court for good cause shown, unless the trust instrument
expressly provides otherwise.

HISTORY: 1997, c. 921, § 37.1-137.5; 2003, cc. 253, 528; 2005, c. 716, §
37.2-1024; 2012, c. 614; 2013, c. 523; 2014, c. 532; 2025, c. 148.