Virginia Code 64.2-909: Determination of incapacity; effect
A. The custodial trustee shall administer the custodial trust as for an incapacitated beneficiary if (i) the custodial trust was created under § 64.2-904, (ii) the transferor has so directed in the instrument creating the custodial trust, or (iii) the custodial trustee has determined that the beneficiary is incapacitated. A custodial trustee may determine that the beneficiary is incapacitated in reliance upon (a) previous direction or authority given by the beneficiary while not incapacitated, including direction or authority pursuant to a durable power of attorney, (b) the certificate of the beneficiary’s physician, or (c) other persuasive evidence. On petition of the beneficiary, the custodial trustee, or other person interested in the custodial trust property or the welfare of the beneficiary, the court shall determine whether the beneficiary is incapacitated. Absent determination of incapacity of the beneficiary, a custodial trustee who has reason to believe that the beneficiary is incapacitated shall administer the custodial trust in accordance with the provisions of this chapter applicable to an incapacitated beneficiary.
Terms Used In Virginia Code 64.2-909
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Beneficiary: means an individual for whom property has been transferred to or held under a declaration of trust by a custodial trustee for the individual's use and benefit under this chapter. See Virginia Code 64.2-900
- Court: means a circuit court of the Commonwealth. See Virginia Code 64.2-900
- Custodial trust property: means an interest in property transferred to or held under a declaration of trust by a custodial trustee under this chapter and the income from and proceeds of that interest. See Virginia Code 64.2-900
- Custodial trustee: means a person designated as trustee of a custodial trust under this chapter or a substitute or successor to the person designated. See Virginia Code 64.2-900
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Incapacitated: means lacking the ability to manage property and business affairs effectively by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, disappearance, minority, or other disabling cause. See Virginia Code 64.2-900
- Person: means an individual, corporation, business trust, estate, trust, partnership, joint venture, association, or any other legal or commercial entity. See Virginia Code 64.2-900
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Transferor: means a person who creates a custodial trust by transfer or declaration. See Virginia Code 64.2-900
- Trustee: A person or institution holding and administering property in trust.
- Trustee: means a trustee under a probated will or an inter vivos trust instrument. See Virginia Code 64.2-100
B. If a custodial trustee for an incapacitated beneficiary reasonably concludes that the beneficiary’s incapacity has ceased, or that circumstances concerning the beneficiary’s ability to manage property and business affairs have changed since the creation of a custodial trust directing administration as for an incapacitated beneficiary, the custodial trustee may administer the trust as for a beneficiary who is not incapacitated.
C. Incapacity of a beneficiary does not terminate (i) the custodial trust, (ii) any designation of a successor custodial trustee, (iii) rights or powers of the custodial trustee, or (iv) any immunities of third persons acting on instructions of the custodial trustee.
1990, c. 264, § 55-34.10; 2012, c. 614.