Monday, May 14, 2018

Senior Citizen Handbook for Virginia has a warning about guardianship

The Metropolitan Community Church of Northern Virginia (MCCNova) hands out, on its hospitality table, a “Senior Citizen Handbook, Laws and Programs Affection Senior Citizens in Virginia”, a project of the Senor Lawyers Conference of the Virginia State Bar.  It is good to see this offered at a “gay” church, since elder LGBT persons are often living alone and may have less ties to biological family than others.

Several important topics attracted my notice. On p. 62, revocable living trusts (which I had for mother, who passed in 2010) are discussed. The usual advice that family members appointed as trustees need to be careful and not comingle their own assets (before death and authorized distributions) is well noted.

The booklet mentions a “special needs trust” on p 64, set up with a beneficiary’s own money.  But it is also possible for a beneficiary to receive funds from an irrevocable trust after the original elder has passed.  A beneficiary typically has a fiduciary interest in the trust and may receive regular income from it, which is not the same thing as a distribution.  The executor may be legally required to continue the income.  Or a special needs beneficiary might get benefits from the eventual death of the executor (if elder) early in the way of some income, if the special needs are clearcut enough.  What gets interesting is that a beneficiary could be a non-profit organization that assists others.  Then there could be a question as to whether it is appropriate for that beneficiary to ask for payments early.

The booklet also distinguishes a “supplemental needs trust”.
On p. 67, the booklet takes up the subject of guardianship and conservatorship. There is an astonishing statement. “Under Virginia law, any adult person may petition the city or county circuit court to obtain guardianship or conservatorship of another person.”  It’s easy to imagine how a Medicare-reimbursed physician could feel tempted to abuse this. Later it reads “Guardianship deprives the incapacitated person of many civil rights.”

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