In this series of blog posts, we are exploring the various statutory mechanisms by which an irrevocable trust may be modified or terminated. As previously discussed, a grantor may wish to create an irrevocable trust for any number of reasons, but if circumstances change over time, the provisions of an irrevocable trust may no longer be practical or economical.
Modification and Termination of Irrevocable Trusts: Unanticipated Circumstances or an Inability to Administer a Trust Effectively (Va. Code Ann. § 64.2-730)
As outlined in my previous blog post, an irrevocable trust is one that by definition and design cannot be amended, modified, changed or revoked. A settlor, one who creates or contributes property to a trust, may wish to make his or her trust irrevocable for any number of reasons. As time passes, however, the circumstances under which an irrevocable trust was necessary or preferable may no longer exist. To this end, the Code of Virginia sets forth several provisions by which an irrevocable trust may be modified or terminated.
An irrevocable trust is one that by definition and design cannot be amended, modified, changed or revoked. Trusts can be made irrevocable at creation or may become irrevocable upon the death or incompetence of a grantor, or upon the happening of any event that removes the right of revocation. A grantor may wish to create an irrevocable trust for any number of reasons, including for creditor protection or tax planning purposes. However, if circumstances change, whether for the grantor, the beneficiaries, or in the law, the provisions of an irrevocable trust may no longer be useful or practical in achieving the grantor’s initial goals. How then, do we change the unchangeable?
If you’ve been appointed as a guardian or conservator for an incapacitated adult, you’ve petitioned the court and obtained an order in the incapacitated person’s home state. Should you and the incapacitated person move to another state, however, that guardianship order may not be recognized.
As discussed in previous posts, for the purposes of guardianship and conservatorship, an “incapacitated person” means an adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator.
In my last blog post, I outlined a brief introduction to the process of seeking a guardian and conservator for an incapacitated adult.
When people hear the word “guardian,” they often think of an adult authorized to make decisions on behalf of a child. It is important to know, however, that guardianships are not limited to children. In fact, Virginia courts appoint guardians and conservators for incapacitated adults in a variety of circumstances. This first in a series of blog posts discussing adult guardianships and conservatorships in Virginia will provide a brief introduction to the process of becoming a guardian or conservator of an incapacitated adult.