Not only do fiduciaries have wide-ranging and consequential responsibilities, but acting as a fiduciary requires considerable skill and experience, as well as a significant investment of time and effort. This makes selecting a fiduciary—the trustee for a trust, or the executor, conservator, or power of attorney for your estate—one of the most important decisions you'll make during the estate planning process.

While people often choose a family member or close friend to act as a fiduciary, there are times when hiring a professional fiduciary may be a better option. If you are considering hiring a professional fiduciary to assist you or a loved one, here's what you should know—and what you should ask—when interviewing professional Virginia fiduciaries.

What Fiduciaries Do

Fiduciaries are responsible for executing their duties according to the terms of the trust, will, conservatorship, or power of attorney document. Individuals acting as a fiduciary may be tasked with:

• Handling finances
• Marshaling assets
• Collecting debts, rents, and other income
• Paying bills and taxes
• Making investment decisions
• Managing real estate and other types of tangible property
• Making distributions to trust or estate beneficiaries
• Keeping detailed records of income and expenditures
• Providing an annual accounting to the court

When to Consider a Professional Fiduciary

Fiduciaries play an essential role in estate and trust planning and administration. However, being a fiduciary can be challenging and, quite frankly, overwhelming for people without specialized training and experience. While there's no shame in reaching out to a professional fiduciary for assistance for any reason, here are a few reasons you may want to opt for professional fiduciary services:

• No suitable friends or relatives in the area
• Family estrangements
• Would-be fiduciaries are unsuitable due to untreated mental illness, immaturity, financial irresponsibility, existing obligations, or other reasons
• Estate or trust is particularly sizable or complex
• Potential for conflicts between beneficiaries

Perhaps most importantly, a professional fiduciary can provide you with the peace of mind of knowing that your trust or estate will be executed according to your wishes.

Vetting Fiduciary Professionals

A fiduciary's job often requires them to have access to your family's personal and financial information, which is why it is so imperative to ensure that you're working with a qualified and reputable professional. Asking questions like the following when interviewing professional fiduciaries can help you determine whether they're a good fit for you or your family's needs.

• What types of services do you provide?
• What are your credentials?
• What are your fees, and when are they assessed?
• How much do you estimate your services will cost my trust or estate?
• Do you have errors and omissions insurance?
• Do you work alone or do you have a staff? What types of services are delegated to staff members?
• What are your phone and office hours? Are you accessible by text or email?
• Can I reach you or your staff after hours if I have an emergency?
• How long do clients typically have to wait for you to respond to messages?
• How do you protect my confidential information?
• Do you have a disaster recovery plan for my data?
• Do you coordinate with other professionals, such as accountants or caregivers? What are their fees?
• How often will you provide an accounting?
• Can you provide references of past or current clients or other professionals you've worked with?

How We Can Help

Cucinelli Geiger, PC's trusted professional fiduciaries provide a wide variety of services, offering everything from occasional advice and step-by-step guidance to serving as a trustee, executor, guardian, conservator, or power of attorney for you and your family. We can assist you with paying bills and taxes, preparing inventories and accountings, closing or transferring accounts, and much, much more—including helping you navigate emotionally challenging and potentially contentious situations. Ready to find out what we can do for you?

Schedule a Consultation

Contact us today to schedule an appointment to discuss your fiduciary needs with one of our professional Virginia fiduciaries.

While the individual appointed to serve as guardian for an incapacitated adult is often a family member or close friend, there are times when this may not be possible or when it would not be in the senior's best interest. Professional guardians are equipped with the knowledge and experience needed to handle the complex issues involved in adult guardianships.

If you are considering taking advantage of professional guardianship services, here's what you need to know about what Cucinelli Geiger, PC's exceptional team of elder law and fiduciary attorneys can do for you.

Guardianship vs. Conservatorship

Guardians are appointed to handle personal matters, while conservators manage financial affairs. When incapacitated seniors need someone to direct both types of affairs, the court can appoint separate individuals to serve as guardian and conservator or one individual or organization to fill both roles. As professional fiduciaries, our skilled attorneys can adeptly assist you in whatever capacity you require.

Guardian Duties and Responsibilities

Serving as a guardian or conservator for an elderly friend or loved one can be a tedious and time-consuming job. Here are just a few examples of tasks these roles can entail:

• Maintaining contact with the incapacitated person to understand their needs, capabilities, and limitations, visiting as often as necessary
• Determining where the person will live and monitoring their residence
• Applying for and managing government benefits
• Providing consent for medical treatments
• Providing consent for non-medical services, such as counseling
• Acting as a representative payee for Social Security benefits
• Managing their social environment and opportunities
• Making end-of-life care decisions
• Handling finances
• Making investment decisions
• Collecting debts and other forms of income
• Paying bills and taxes
• Managing real estate and other types of personal property
• Keeping records of income and expenditures
• Requesting court approval before selling, donating, transferring, or mortgaging property
• Providing a complete financial accounting to the court at least annually
• Always acting in the best interests of the incapacitated ward

Acting as a guardian or conservator requires a considerable investment of time and energy, can strain relationships with loved ones, or get in the way of career or other important family obligations. Before agreeing to serve in these roles, it's important to be honest with yourself and your loved ones about whether you're up to the challenge.

When to Consider a Professional Guardian

There are a number of instances in which a professional may be a better choice to be a guardian than a friend or family member, such as when:

• The incapacitated senior has no close family in the area
• The senior is estranged from their family
• Family members or friends are unsuitable due to certain types of uncontrolled mental illnesses, immaturity or financial irresponsibility, addiction, or pressing career or family obligations

Whatever your reasons for considering professional guardian services, you've come to the right firm for assistance.

What Our Professional Fiduciaries Can Do

At Cucinelli Geiger, our professional fiduciaries can serve as trustee, executor, guardian, conservator, or power of attorney for you and your loved ones, assisting with:

• Paying bills
• Closing or transferring accounts
• Preparing court inventories and accountings
• Coordinating the preparation of tax returns
• Drafting guardian reports
• Much more

Regardless of whether you need someone to advise you on the completion of each task or would like our seasoned professionals to handle everything from A to Z, we're here when you need us.

Schedule a Consultation

Contact us today to schedule an appointment for a consultation with a member of our nationally recognized legal team. We look forward to discussing how we can serve you.

Whether you are planning your estate and need to name a representative or you have been named a fiduciary by a friend or relative, it is essential that you understand what the role entails and what's expected of you.

Acting as a fiduciary involves overseeing an array of complex legal and financial issues that come with handling someone else's assets. The job can be time-consuming and emotionally challenging, and not everyone is up to the task. Here's what you should know about Virginia trust and estate administration and why you should consider taking advantage of professional fiduciary services.

Duties and Responsibilities of a Trustee or Executor

Serving as a trustee or estate executor can be complicated, overwhelming, and requires a significant commitment of both time and effort. The following is an overview of the wide-ranging tasks these types of fiduciaries may be expected to complete:

• Qualify as an executor or trustee
• File the will in probate court
• Identify which assets must be probated
• Notify banks, financial institutions, and applicable government agencies of a loved one's death
• Gather all trust or estate assets and income
• Obtain valuations on business interests, real estate, and all other assets and property
• Notify trust and estate beneficiaries
• Figure out who is named as a beneficiary on each of the deceased's retirement accounts
• File annual income tax returns
• Pay ongoing estate or trust administration costs
• Liquidate assets as needed to settle debts and make distributions
• Settle disputes
• Invest trust assets safely and prudently, acting in the best interest of the beneficiaries
• Distribute assets and inheritances to beneficiaries
• Prepare and file final income and estate tax returns
• Close the estate

If being a fiduciary for a trust or estate sounds difficult, that's because it is. While lengthy, the above list of duties doesn't even begin to scratch the surface of what fiduciaries must do.

Benefits of Professional Fiduciary Services

A professional fiduciary can:

• Gather necessary documents
• Complete required paperwork
• Manage and meet important deadlines
• Coordinate with the family's geriatric care manager, accountant, financial planner, and other professionals
• Prepare court inventories and accountings
• Marshal assets and pay taxes and debts
• Resolve disputes between beneficiaries

Qualifying as an Estate Executor in Virginia

When creating a last will or testament, testators can name any trusted adult to serve as estate executor. The court usually approves the appointment of the named individual, provided that their selection wasn't the result of undue influence and there are no conflicts of interest.

To qualify, the prospective executor must contact the clerk's office in the county where the decedent resided and meet with the clerk (or deputy clerk) in charge of handling probate matters. During the meeting, the clerk will review a wide range of documentation, such as:

• The deceased's original last will and testament
• A certified copy of the death certificate
• Completed Probate Information and Probate Tax Return forms
• List of the decedent's heirs

In some cases, the executor may be required to pay a surety bond that equals the full value of the deceased's estate. However, wills often specifically waive this requirement.

Why Family Members or Close Friends May Be Unsuitable

Asking a close friend or family member to serve as a trustee or estate executor is no small favor. Many of the duties and responsibilities outlined above require completing multiple complicated and time-consuming steps. There's also an extensive amount of paperwork and numerous can't-miss deadlines to keep track of, which can make it a difficult, stressful, and overwhelming role for even the most well-intentioned individuals.

A hard and fast rule in selecting a fiduciary is that the named person should be someone you know well. However, in some cases, choosing someone close to you to serve as fiduciary for your estate or trust might not be best or could even be actively problematic. For example, friends and family may be unsuitable fiduciaries due to:

• Immaturity
• Financial irresponsibility
• Other family or career obligations
• History of substance abuse or certain mental illnesses
• Poor health
• Criminal records
• Distance (out-of-state or international executors must select an agent who resides in Virginia to handle the process)

Additionally, naming a friend or family member as trustee or estate executor can create conflict among relatives that could be avoided by choosing an impartial professional. It's also important not to underestimate the emotional impact that your loss could have on those closest to you. It may be difficult for them to diligently fulfill the demanding role of fiduciary while processing their grief.

Why Choose Us

Cucinelli Geiger's trusted Virginia trust and estate administration attorneys have helped countless clients navigate these complicated and unfamiliar legal processes. If you're ready to name a fiduciary or have been named a fiduciary for a friend or relative's estate or trust, we may be able to do the same for you.

Our in-depth knowledge of the laws and legal process, as well as our many years of experience, allow us to adeptly handle a wide range of fiduciary services. We are discrete, conscientious, and insightful professionals committed to being here when you need us, taking on as much—or as little—of the burden as you wish. We can offer advice on how to complete the administration process or handle it for you from A to Z so that you can focus on your family. Ready to talk to us about your legal needs and find out how we can assist you? Take action now. Contact us today to schedule an appointment for a consultation with one of our skilled professional fiduciaries.

Unfortunately, dying without a will or estate plan can have significant consequences—not for you, of course, but for your estate and your family. Here's what you need to know about the intestate succession process in Virginia and how Cucinelli Geiger's experienced probate attorneys can help.

Dying Without a Will

If you die without a valid last will and testament, known as dying intestate, the property and other assets in your estate will be distributed according to the commonwealth's intestate succession laws rather than your wishes. After the appointed administrator settles the estate's debts, what remains will be passed to your statutory heirs, regardless of whether you were close to them or would have wanted them to be your beneficiaries. Situations like these can complicate estate administration, leading to costly and lengthy legal battles and delaying the distribution of inheritances.

Determining Which Assets Pass by Intestate Succession

Intestate succession laws don't apply to all assets. Typically these statutes dictate the transfer of property in your name that would have been passed through a last will and testament. Examples of assets that aren't affected by intestate succession include:

• Life insurance proceeds
• Property that's been transferred to a living trust
• Funds in an IRA, 401(k), or another retirement account
• Securities held in a transfer-on-death account
• Payable-on-death bank accounts
• Property you own with someone else

The above assets will pass to the named beneficiary (or, in cases of joint ownership, to the surviving owner) regardless of whether you have a valid will.

Virginia Intestate Succession Estate Distribution

If you die intestate, who gets your property largely depends on whether you have a surviving spouse or living children, parents, or other close relatives.

• When you have a surviving spouse and heirs who are descendants of that spouse, your spouse inherits everything.
• When you have surviving children but no spouse, your children inherit everything.
• When you have a surviving spouse but no descendants (children, grandchildren, or great-grandchildren), your spouse inherits everything.
• When you have a surviving spouse and descendants, but one or more of the descendants aren't descendants of the spouse, your surviving spouse inherits one-third of the intestate property, while descendants receive equal shares of the remainder.
• When you have no surviving spouse or children, your parents inherit everything.
• When you have siblings but no spouse or parents, your siblings inherit your intestate assets.

Special Situations

Virginia families come in all different shapes and sizes. Here are a few important things to note:

• Legally adopted children are entitled to the same share of intestate assets as biological children.
• Foster children and stepchildren who were not legally adopted don't automatically receive an inheritance under intestate succession laws; however, stepchildren may have the right to inherit if there are no other beneficiaries.
• Half relatives, such as half-siblings, are entitled to half the inheritance that a sibling who shared both parents would receive.

Helping Families Navigate the Complex Intestate Succession Process

If you recently lost a loved one who didn't leave a will or estate plan, Cucinelli Geiger's exceptional attorneys can guide your family through the complex and emotional intestate succession process in Virginia. Or, if you're considering planning your estate and reach out to us now, we can help your family avoid this process entirely. Find out how we can help you take control of who receives your hard-earned assets when you're gone.

Schedule a Consultation

Contact us today to schedule a consultation to discuss your estate planning or probate legal needs.

Probating an estate can be extremely difficult. Not only is probate lengthy, complicated, and costly, but it can also be emotionally trying and even contentious. Making it through the process unscathed requires having skilled legal guidance and strong representation at every turn. Fortunately, you've come to the right law firm for help.

Exceptional Virginia Estate Planning and Probate Attorneys

At Cucinelli Geiger, PC, our estate planning and probate attorneys have the knowledge, experience, and emotional intelligence needed to successfully guide clients through each and every step of this unfamiliar and often confusing process. We're a trusted name in estate planning and administration law, having served the community for more than 15 years. Facing probate with trepidation? Here's what you should know—and how we can assist you.

Virginia Probate Basics

Trying to learn everything you need to know about probate and estate administration can be overwhelming. Here are a few key points to keep in mind:

• While some states have separate courts dedicated to hearing probate matters, Virginia does not. Instead, estates are probated in the circuit court of the city or county where the decedent resided prior to their death.
• Virginia law doesn't specify a deadline for when the probate process should begin. However, because the process itself can be lengthy, it's wise to file in a timely manner, generally between one and four weeks following the funeral.
• How long it takes to complete probate can depend on a variety of factors, including the size of the estate, the amount of outstanding debt and taxes, the number of beneficiaries, if there are any tax issues, and whether the will is contested or not.
• The duties and responsibilities of an estate executor or administrator can be numerous, complicated, and time-consuming. As a result, the individual or entity serving in this important role can collect a fee, which is subject to court approval. The fee may be set in the will or by the court.
• Did your loved one die intestate (without a will)? Their estate will still have to go through probate, and, unfortunately, the lack of a last will and testament can make the process even more complicated.

Steps in the Virginia Probate Process

If you have to probate a loved one's will and don't know where to start, here is a brief overview of each step.

Meet With the Circuit Court Clerk

Probate proceedings in Virginia are typically handled by the circuit court clerk (or a deputy court clerk) rather than a judge. If your loved one left a will in which you were named executor, you would need to attend a meeting with the court clerk and present the original will, as well as a certified copy of the decedent's death certificate.

Anyone can serve as an executor, provided that they are older than 18 and physically and mentally able to perform the wide-ranging duties that come with the role.

In the event that there wasn't a will, the will didn't name an executor, or the named individual was unqualified or unable to complete their duties, the court can appoint a person or institution to administer the estate.

Follow the Requirements to Be an Estate Executor or Administrator

An estate executor or administrator must follow very specific legal requirements, including taking an oath of office administered by the circuit court clerk. In some cases, they may have to post a surety bond equal to the value of the probate estate. However, wills often waive the requirement for a bond.

Once you've complied with these stipulations, you'll receive a certificate of qualification that allows you to act on the estate's behalf. Your next steps will be to inform named heirs and beneficiaries as well as the decedent's other close relatives that the will is in probate.

Assemble Estate Assets

Marshaling the estate's assets is a complicated process that requires contacting the decedent's employer, the Social Security Administration, and other individuals or agencies to collect money owed to the estate. For estates valued at more than $15,000, the executor must submit a complete accounting of assets to the Commissioner of Accounts.

Pay Estate Debts

Before assets can be distributed to beneficiaries, they must first be used to pay any applicable estate taxes or debts, such as the deceased's final medical expenses and funeral and burial costs. As executor, you'll also be tasked with completing state and federal tax returns for the final year of your loved one's life, as well as tax returns for the state.

Distribute Remaining Assets

Once the estate's taxes and debts have been satisfied, you can begin the complicated process of distributing assets to named heirs and beneficiaries according to the terms of the will. In the absence of a will, remaining assets are distributed by intestate succession rules.

Close the Estate

The final step in the probate and estate administration process is closing the estate. This involves providing the Commissioner of Accounts with a final accounting, showing that all taxes and debts have been paid, remaining assets were distributed to beneficiaries, and the estate account has a zero balance.

The Benefits of Working With a Lawyer to Settle an Estate

Not only is probate and estate administration complicated, but with potential pitfalls around every corner, there's far too much at stake to go it alone. We can provide the professional fiduciary services and peace of mind your family deserves after the loss of a loved one. Contact us today to schedule a consultation to discuss your probate and estate administration needs with a member of our nationally recognized legal team.

Becoming an Executor

In Virginia, the role of executor is conferred by the circuit court of the city or county where the decedent resided at the time of their death. When a testator creates a will, they typically name the person or entity they want to be entrusted with the administration of the estate according to the terms of the last will and testament.

The executor can be just about anyone—from a trusted friend or relative to a bank or other professional fiduciary. However, in order to be approved by the court, the person named as executor must be older than 18 and mentally and physically capable of carrying out a long list of complex duties and responsibilities. Additionally, an executor may be required to pay a surety bond (though most Virginia wills waive this requirement).

In cases where a decedent died without a will, or intestate, the court will appoint an individual or institution to administer the estate according to Virginia intestate succession statutes.

Duties and Responsibilities

An executor is responsible for resolving a decedent's estate. This is often a lengthy process that involves marshaling the estate's assets, paying outstanding (and legally enforceable) debts, and distributing inheritances to beneficiaries—either according to the terms of the will or, in the absence of a will, per intestate succession laws.

If named or appointed to serve as the executor for a loved one's estate, your duties and responsibilities may include:

• Obtaining the decedent's death certificate
• Making or executing funeral and/or burial arrangements
• Locating the will and other important estate planning documents
• Gathering, inventorying, and valuing estate assets
• Notifying probate heirs, beneficiaries, and other relatives
• Determining and paying debts and applicable taxes
• Filing an inventory of the estate with the Commissioner of Accounts
• Defending the estate against invalid debts and claims
• Distributing remaining assets according to the will or intestate succession
• Settling the estate with the court

When this list is extensive, it barely scratches the surface in terms of what, exactly, is expected of someone serving as an estate executor.

Compensation

As discussed above, administering an estate is no small job, and tasks can be time-consuming. Executors are allowed to collect a fee for their work, which is subject to court approval. While the executor fee is often stated in the will, when it isn't, the court will decide what fee is reasonable.

Removing an Executor

Carrying out the decedent's final wishes and acting in the best interests of the estate's beneficiaries are the most important duties an executor has. If an executor fails to live up to their responsibilities, they can be removed for misconduct.

When You Need Professional Assistance

Did your loved one die without real estate and very few assets? You may be able to sail through the probate process or even bypass it entirely. However, if the estate assets are considerable or there's the potential for legal disputes, it's wise to consult a knowledgeable probate attorney. Here are a few reasons:

• Probate involves complicated laws and deadlines
• Assets may be difficult to locate or gather
• The process can be contentious, especially if beneficiaries are squabbling over assets or eager to receive their inheritance
• You feel confused or overwhelmed by the probate process

Schedule a Consultation

If you need professional guidance for estate administration, or you are ready to turn the task over to experienced Virginia probate attorneys, contact us today to schedule an appointment for a consultation to discuss your legal needs.

Whether you're a parent fighting to ensure that your children would be well cared for in your absence, or a grandparent, aunt, uncle, or other relative intent on leaving assets to a minor, the estate planning attorneys with Cucinelli Geiger, PC can help you explore your legal options for protecting them and their futures. Here's what you need to know.

Designing an Estate Plan That Provides for Young Children

Estate planning can be complicated, particularly where providing for minor children is involved. Misconceptions abound, and they can lead you down a path that has unintended negative consequences. For example, when naming a guardian for your children, you may have assumed that said guardian could automatically access your kids' inheritance and use it to care for them. Unfortunately, that isn't the case. Unless your estate plan specifies that the children's guardian should also manage any assets left to them until they come of age, you'll need to name another individual to serve as property guardian. Otherwise, the court will control those assets. Either way, the assets managed for your children will become available to them, without restrictions, when they turn 18.

A well-crafted estate plan can help ensure that your children's caregivers have access to adequate resources, as well as prevent your kids from receiving large sums that they may not yet be mature enough to manage as young adults.

Potential Estate Plan Solutions

Leaving assets to minor children is something that requires careful consideration and complex estate planning strategies. Here's why: While kids can inherit, they can't legally own assets until they're at least 18 years old. Even after your children are technically adults, you may have stipulations for when and how they should receive their inheritance. Our attorneys can help you find the right solution to achieve your goals. Consider these options.

Beneficiary Designations

After your death, the assets you left to your surviving family members can get held up in probate. Naming your children as beneficiaries on your savings accounts, life insurance policies, investment accounts, retirement accounts, and other financial accounts you want them to have can prevent unnecessary delays. If you are married, you can name your kids as contingent beneficiaries after your spouse.

UTMA Custodianship

Another option is to name a property guardian or custodian and set up an account through the Uniform Transfers to Minors Act (UTMA). Not only can the money in this account be used for things that benefit your children, but the arrangement also allows you to provide detailed instructions for the property guardian. A UTMA custodianship can provide many of the benefits of a trust, but without the complications and expense. However, Virginia has strict regulations governing these types of accounts, so it's wise to consult an experienced attorney before making any decisions.

Trusts

Trusts can be complicated and expensive to establish, but they have the benefit of allowing you to specify requirements that your kids must meet to receive their inheritance. For example, if you want inherited assets distributed to your children in installments, at certain ages, or only under certain conditions, a trust can help you do that. Talk to our attorneys about the many trust options for your estate plan.

Schedule a Consultation

At Cucinelli Geiger, PC, our exceptional attorneys are here to guide you through each and every step of the estate planning process, helping you find the right solutions to protect your kids and their futures. Contact us today to schedule an appointment to discuss your estate planning goals with a member of our team.

Our Estate Planning Team Is Here for You

Estate planning can be complicated. At Cucinelli Geiger, PC, our estate planning lawyers help clients throughout the Old Dominion implement the legal documents necessary to protect their families and their legacies. Whether you're just starting the estate planning process or need an existing estate plan reviewed and updated, our conscientious and caring counselors are here to guide you each and every step of the way.

When You Should Update a Virginia Estate Plan

When was the last time you took a serious look at your will and guardianship designations? If you can't remember, it may be time to schedule an appointment with a skilled estate planning attorney. While the best time to review an estate plan can vary, generally speaking, it's a good idea to revisit the documents with your lawyer on a regular basis—at least every three to five years. Revisions to your estate plan will be needed after every major life change. Here are a few examples of instances that can provide great opportunities for you to stop and rethink whether your existing estate plan still meets your family's needs.

Change in Residence

Estate planning laws can vary (sometimes significantly) from state to state. Have you moved to another state since creating your estate plan? If so, it may be time for another look. Work with our dedicated estate planning lawyers to review your estate plan and ensure that it takes full advantage of any applicable Virginia statutes.

Change in Family Situation

As your family changes, so, too, should your estate plan. Whether someone in the family has been through a divorce, you have new members through marriage, birth, or adoption, or you've become estranged from a loved one, we can help you update your estate plan to reflect your changing family and relationships.

Change in Income or Assets

A change in income or assets can have a substantial impact on your financial priorities. Our attorneys can help you evaluate your estate plan and financial circumstances to ensure that they align. Revisiting your plan after finances change is vital—regardless of whether the change is positive or negative.

Change in Estate Planning Goals

Like so much else in life, estate planning goals can change over time. When that happens, your plan estate plan should change, too. Examples of times when changing goals may justify changing your estate plan include:

• You've decided that, after your death, you want your estate to support a charitable cause or organization that's important to you
• You want to include a new beneficiary
• You want to change support for a beneficiary or disinherit them entirely

Poor Health

Finding out that you or a loved one is in poor health may necessitate a number of changes to your estate plan. Our adept legal team can analyze your existing plan, update beneficiaries as needed, and work with you to craft an estate planning letter of instruction so that your estate executor or administrator knows what's expected of them.

We Stay on Top of Your Estate Plan

State and federal tax laws change every year, and those changes could affect your estate plan. Our attorneys can review your plan and advise you on smart strategies for reducing your estate's tax burden.

Is it time to review and update your estate plan? Whether you wrote your plan with us or not, contact us today to schedule an appointment for an initial consultation to discuss your goals with a member of our legal team.

Watch Out for These Common Estate Planning Errors

Estate planning isn't intuitive, and when you consider how easy it is to make mistakes that can have unintended but significant negative consequences, it's no wonder that it's a task people tend to put off. The good news is that, with the assistance of an adept estate planning attorney, you can achieve your goals and protect your family's future. Here are some of the most common mistakes people make when it comes to estate planning.

Failing to Plan

Have you been putting off thinking about an estate plan? No one likes thinking about their own mortality, and you certainly wouldn't be the first person to mistakenly assume that you're too young, too healthy, or lack sufficient assets to benefit from having an estate plan. The stark truth is that no one is assured a tomorrow, and if you die without a will, trust, or other estate planning tool in place, it can make the loss even more difficult for your family.

Dying without these vital documents means your estate will have to pass through the probate process before assets can be distributed to beneficiaries. In addition to being lengthy, costly, and public, going through probate means that assets are dispersed according to intestate succession laws rather than your wishes. Don't risk it. Find out how we can help you start the estate planning process today.

Using Templates or Do-it-Yourself Services

You're intelligent and capable, but trying to plan your estate without the advice and assistance of a professional can be a recipe for disaster. Templates and DIY services don't understand your finances, goals, or special circumstances. As a result, a fill-in-the-blank approach to estate planning simply cannot provide the protection or peace of mind that comes with working with a knowledgeable, experienced, and skilled estate planning attorney. Planning an estate can be frustrating, confusing, and intimidating but, with our help, it doesn't have to be.

Following Other People's Estate Planning Advice

Once your friends, family, neighbors, and coworkers find out that you're working on an estate plan, you may start to get a lot of advice about what you should do based on what worked for them. The problem is, what worked for them may not work for you and could even end up putting you in a bad position. Take this well-meaning legal advice with a grain of salt and consult an estate planning attorney.

Failing to Regularly Review and Update Your Estate Plan

As your life changes, so, too, should your estate plan. Most estate planning professionals recommend reviewing and updating your plan every three to five years or after births, deaths, marriages, divorces, and other major life changes. You may also need to update your estate plan if you move, wish to add or change beneficiaries, or open a business. If you have an estate plan, our accomplished attorneys can go over it with you to ensure that it still meets your current and future needs.

Failing to Plan for Incapacitation

If you consider yourself young and healthy, the idea of planning for incapacity can seem unnecessary. Unfortunately, accidents and illnesses can strike at any time. Designating someone who can make important health or financial decisions for you when you're unable to make them for yourself is essential. We can help you explore your options for powers of attorney and draw up the necessary legal documents.

Failing to Plan for Long-Term Care Needs

For people who are 65 today, the chance of needing some type of long-term care or support services in their remaining years of life is nearly 70 percent. With nursing home care ranging between $8,000 and $12,000 per month and the average person requiring between two and five years of care, the cost of long-term nursing care is far more than most families can pay.

Medicaid can help, but qualifying for this government assistance program often requires careful advance planning to meet strict income and asset limits.

If you have to reduce assets to qualify, there are right and wrong ways to do it, and doing it the wrong way can delay your eligibility for much-needed coverage. Estate planning attorneys at Cucinelli Geiger, PC can help you find ways to spend down safely, qualify for benefits, and preserve assets for the benefit of your loved ones.

Failing to Plan for Minor Children or Grandchildren

When you have young children, your estate plan should name guardians for them (in the event of your incapacity or death). It should also include directions for the guardian, instructing them on how to spend assets to care for the children or otherwise benefit them.

Failing to Understand or Plan for Estate Tax Liability

Estates that are particularly large may be subject to estate taxes which the executor or personal representative for your estate will have to pay. Failing to plan for estate tax liability can result in your hard-earned money going to unnecessary taxes or fees rather than your beloved friends and family members. Our attorneys can help you find solutions to protect your estate from excess tax liability.

Choosing the Wrong Personal Representative or Fiduciary

The person you choose to serve as a trustee, executor, conservator, or personal representative should be trustworthy, reliable, and able to dedicate the necessary time and effort to wide-ranging estate administration tasks. Choosing an unqualified, inexperienced, or immature fiduciary can make estate administration a nightmare. We can help you choose a qualified person, and we can even help them successfully complete their duties and responsibilities.

Schedule a Consultation

You need a knowledgeable and experienced estate planning attorney to help you avoid these common mistakes. Fortunately, you've come to the right place. Contact us today to schedule an appointment for a consultation to discuss your estate planning needs and goals.

If you're running the numbers in your head and thinking that there's no way your family could shoulder that kind of financial burden, you're not alone. Many families need assistance covering nursing home costs, and government programs can help.

In fact, Medicaid is the primary payer for long-term care services in the United States. However, not only can qualifying for Medicaid be difficult but it's often confused with Medicare. Though the names are similar, these are two very different programs. Here's what you need to know.

Medicare vs. Medicaid

While both are government programs designed to provide access to healthcare, and it is possible to qualify for both, Medicare and Medicaid provide different benefits and are generally intended to serve different segments of the population.

Medicare

Medicare is a federal program that provides health care coverage to people age 65 and older who've paid into the system over the years via the payroll tax. The program serves people regardless of income and, in addition to seniors, serves younger individuals with disabilities, as well as dialysis and ALS patients. Medicare consists of four parts:

• Part A – Hospital Insurance
• Part B – Medical Insurance
• Part C – Medicare Advantage Plan
• Part D – Prescription Drug Coverage

Patients pay deductibles for various costs and a nominal monthly premium for non-hospital coverage.

Medicaid

Medicaid is a joint federal and state assistance program that provides a wide range of care and support services for people with limited incomes. It covers everything from routine medical care to major hospitalizations—and, importantly, long-term nursing home care. Most services are provided without charge; however, Virginia Medicaid does charge small co-payments for certain services.

Medicare Doesn't Cover Long-Term Nursing Care

Why would you need to qualify for Medicaid if you already have Medicare? Because, unlike Medicaid, Medicare doesn't cover the cost of long-term nursing care. While Medicare can cover inpatient care in a skilled nursing facility, it will only do so for up to 100 days and only if you meet certain other requirements.

Careful Planning Can Help You Qualify for Medicaid

Medicaid can cover long-term nursing home care costs. However, as a low-income assistance program, qualifying for coverage can be challenging. Medicaid has strict income and asset limits that may require you to "spend down" in order to reach eligibility. This is a tricky process that's rife with potential pitfalls. Giving away money and property to friends and family may sound like just the ticket, but it's a mistake that can cost you dearly. Medicaid has a five-year look-back period, and this is the surest way to run afoul of it, which could further delay your eligibility for much-needed coverage. Don't risk it. Professional help is available.

At Cucinelli Geiger, PC, our knowledgeable and experienced Virginia Medicaid planning attorneys can help you explore your options and find solutions to help you qualify. While the best time to tackle Medicaid planning tasks is well in advance of any long-term care need, it's never too late to protect your assets. Our experienced attorneys also offer crisis Medicaid planning services for when you find yourself facing an immediate or imminent need for extended nursing care.

Schedule a Consultation

Contact us today to schedule an appointment for a consultation to discuss your Medicaid planning needs with our skilled legal team. The sooner you reach out, the sooner we can get to work protecting everything you've worked for from the cost of a long-term nursing home.

Unfortunately, the cost of long-term nursing care is astronomical—with annual costs reaching into the six-figure range—and continues to rise with each year that passes. If you and your family can't afford an expense of that magnitude, you're not alone.

Many people need assistance to pay for long-term care. When that happens, government programs like Medicaid can step in to provide much-needed services and support. Not only can Medicaid cover such expenses, but it is actually the primary source of payment for long-term care, shouldering between 45 percent and 65 percent of the country's total nursing home costs.

However, as an income-based, means-tested program, Medicaid has strict income and asset limits, and qualifying for the care you need often requires careful and thorough advance planning. Sadly, when it comes to Medicaid planning for long-term nursing home care, damaging myths and misconceptions abound, and falling for one can have serious repercussions. Don't risk it. Professional help is available.

Compassionate Virginia Medicaid Planning Attorneys

Medicaid rules are complex, which can make the planning process confusing, frustrating, and overwhelming. At Cucinelli Geiger, PC, our team of knowledgeable, experienced, and compassionate Medicaid planning attorneys can help you structure finances and draft legal documents to qualify for long-term nursing care benefits. We will also work to banish myths and misconceptions that could cost you money or delay your eligibility for Medicaid nursing home coverage.

Common Medicaid Long-Term Care Myths

Where did you learn what you know about using Medicaid to pay for a nursing home? Was it from a friend, family member, or neighbor? Was it something you saw on television or in a movie? Or are they assumptions you've picked up along the way, and you're not even sure where, when, or from whom you learned them? Myths and misconceptions on these topics are everywhere. Don't be tempted to "go with your gut" or trust advice you heard through the grapevine. Here are just a few examples of the Medicaid myths you may encounter.

Myth: You Don't Need Medicaid If You Already Have Medicare

Medicare can pay for some long-term care, provided you meet certain requirements. Unfortunately, even in the best of circumstances, Medicare will only pay for up to 100 days of skilled nursing care, and the program only covers partial care costs during the majority of that time. Also, the "skilled" distinction is particularly important. If Medicare determines that you received "custodial care" rather than "skilled care," the program could decide to pay nothing, leaving you with an unexpected financial burden. Medicare and Medicaid are not the same. Medicaid provides benefits and services that Medicare does not. Don't make the mistake of confusing the two programs.

Myth: You Have to Spend All of Your Money to Qualify for Medicaid

While this is a common misconception, it is absolutely false. Regardless of whether you're a single or married applicant, you can receive some income and own some assets and still qualify for Medicaid benefits. Examples of resources considered exempt for eligibility purposes include:

• One vehicle
• One home
• Personal property and household furnishings
• Prepaid funeral arrangements and burial plots
• Trade or business property essential to self-support
• Assets that cannot be converted to cash

Our experienced attorneys can recommend planning solutions to help you qualify for Medicaid while preserving resources for a spouse or other family members.

Myth: Medicaid Will Take Your Home

When a Medicaid recipient dies, the state can recover the cost of the care the program provided from the decedent's estate. Medicaid defines an estate as:

• All real and personal property and other assets held by the recipient at the time of death
• All other real or personal property or other assets in which the person had any legal title or interest at the time of death

However, when one spouse applies for Medicaid long-term care benefits, the family home is exempt if the other spouse still lives there. Even the home of a single applicant can be exempt for a time. Additionally, when the Medicaid beneficiary dies, the state cannot initiate the estate recovery process if the spouse, a dependent, or disabled child survives them. Talk to our attorneys about ways to ensure your home is protected.

Myth: Your IRA Is Protected

When determining eligibility for Medicaid long-term nursing care, IRAs are considered assets like any other. They aren't automatically exempt. Our legal team can help you explore solutions for protecting an IRA.

Myth: Joint Accounts Are Protected

Setting up a joint account with another person doesn't protect the funds in the account from Medicaid. Regardless of who shares the account, Medicaid considers it money that the applicant can and should access to pay for their long-term nursing home care. If the account only requires a single signature for withdrawal, all of the money is considered a "countable asset." For accounts where two signatures are required, Medicaid considers one-half of the money as a "gift" transferred to the applicant when the joint account was opened.

Myth: You Can Give Away a Certain Amount of Money Per Person Each Year Without Penalty

You're thinking of gift tax law. While you can give away up to a certain amount per person per year without paying a gift tax, Medicaid penalties still apply for improper transactions made during the five-year look-back period.

Myth: It's Too Late to Protect Your Assets

Although Medicaid planning is best done well in advance of any need for long-term nursing care, sometimes life takes you by surprise, and you find yourself needing this care much sooner than expected. Fortunately, it's never too late to protect at least some of your assets. If you're faced with an immediate or near-immediate need, our resourceful attorneys can help you explore your Medicaid crisis planning options.

Schedule a Consultation

Contact us today to schedule a consultation to discuss your Medicaid eligibility and planning needs.

The best time to plan for Medicaid eligibility is well in advance of any need. However, if a sudden illness or serious accident has left you in need of long-term care much sooner than anticipated, we can still help. When you have an immediate or imminent need for long-term nursing care, Cucinelli Geiger's compassionate and capable elder law attorneys can help you explore options for Medicaid crisis planning and determine how to qualify for coverage. Here's what you should know.

Virginia Medicaid Long-Term Care Eligibility

Virginia offers more than one Medicaid long-term care program for seniors. Institutional Medicaid, also known as nursing home Medicaid, is an entitlement, meaning that anyone who meets the income, asset, and other eligibility requirements can receive these services. As the name suggests, this program only covers care provided in nursing home facilities. Virginia Medicaid also provides Medicaid waivers for home and community-based services, which allow seniors to receive care at home or in an adult daycare or assisted living facility. However, these services are only available to a limited number of participants.

Income and Asset Limits

Virginia Medicaid income and asset limits can vary. The following is based on 2021 figures. Contact an attorney for the most recent information.

• Income limits. The income limit is $2382 per month for a single applicant or a married applicant when only one spouse applies for benefits. If both spouses are applying, the monthly income limit goes up to $4,764. Any income the person applying for Medicaid receives is counted for eligibility purposes, including employment wages, SSDI or SSI benefits, alimony payments, pension payments, stock dividends, and IRA withdrawals.
• Asset limits. The asset limit is $2,000 for a single applicant and $3,000 regardless of whether one or both married spouses apply.

Oftentimes, people find that they have too much income or too many resources, or both, to meet Medicaid's strict eligibility requirements. When that happens, our attorneys can help.

Never Follow Medicaid Planning Advice Heard Through the Grapevine

One of the biggest mistakes you can make in crisis Medicaid planning is following well-meaning advice from friends or family members. While the advice given may have worked for them in their situation, that's no guarantee that it will work for you in yours. In fact, following advice from someone who isn't a professional and isn't thoroughly familiar with your finances and care needs can have serious consequences.

For example, while giving away excess assets to friends and family may sound like a reasonable strategy for reaching eligibility, it can cause you to run afoul of Medicaid's five-year look-back period. This can seriously cost you—both in terms of money and how long it takes you to qualify for Medicaid long-term care coverage.

Smarter Strategies

Whereas gifting is one of the worst possible moves you can make in crisis Medicaid planning, there are a number of far more effective ways to qualify for long-term nursing care while preserving assets for a spouse at home or other family members, such as converting countable assets into non-countable assets. Find out how our tenacious Virginia elder law attorneys can help you explore legal strategies for speeding up Medicaid eligibility and approval while limiting how much you have to pay and increasing the assets and income you can keep.

Schedule a Consultation

Contact us today to schedule an appointment for a consultation to discuss your crisis Medicaid planning needs with a member of our legal team.

SNTs are typically terminated after the beneficiary's death, with the trustee dissolving the trust according to instructions detailed in the trust document. This may require the trustee to perform a wide range of tasks, such as filing the trust's final tax return, paying income taxes, and handling other expenses like funeral and burial costs.

Sometimes, when the beneficiary of a special needs trust dies, excess funds remain. What happens to those funds depends on the type of trust and how it was funded. Here's what you need to know.

First-Party Special Needs Trusts

When a person with special needs relies on government programs, receiving a court settlement or inheriting money or property in their own name can put their benefits at risk. Forming a first-party special needs trust and funding it with these assets can provide an effective solution for this dilemma.

However, this type of SNT has specific requirements for formation and termination. First-party special needs trusts must be established for the benefit of a person with special needs who is under age 65 and must be created by the court or the beneficiary's parent, legal guardian, or grandparent.

When the beneficiary dies, any remaining money in the trust must be used to reimburse the state—often dollar-for-dollar—for the cost of care and services that Medicaid or other public programs provided for the disabled person during their life. The trustee must pay back these government-funded liens before distributing any remaining assets to other beneficiaries (known as residual beneficiaries) named in the trust. If satisfying these liens exhausts the leftover funds, no assets will pass to residual beneficiaries.

Third-Party Special Needs Trusts

Third-party SNTs, the most common type of special needs trust, are created and funded by someone other than the trust beneficiary—usually a parent, another relative, or caretaker. Because the third-party SNT and not the special needs beneficiary owns the assets, the trustee isn't required to pay the government back for Medicaid or other services when terminating the trust after the beneficiary's death. Instead, they can distribute any excess trust funds to residual beneficiaries, who are often named in the trust document at the time of creation.

Pooled Special Needs Trusts

These special needs trusts are created and managed by non-profit organizations that pool funds from multiple SNT accounts and invest the money for the benefit of all beneficiaries. When the beneficiary of a pooled SNT dies, any funds that remain in their individual account go to the umbrella trust to cover trust administration costs.

Our Attorneys Can Help You With Special Needs Trusts

Special needs planning can be complicated. When mistakes could interrupt government benefits and the continuity of care for an individual with special needs, there's far too much at stake to go it alone. At Cucinelli Geiger, PC, our special needs planning attorneys can help you identify the best type of SNT for your disabled loved one and create a trust with clear instructions for what should happen to the remaining assets when the beneficiary passes away. We can also help you plan for and handle any tax obligations associated with the termination of the special needs trust.

Schedule a Consultation

Contact us today to schedule an appointment to discuss your special needs trust planning goals with our skilled professionals.

Special needs trusts (SNTs), also known as supplemental needs trusts, are extremely useful for this purpose. There are several different types of SNTs, all of which are designed to manage resources for a person with special needs without risking their continuity of care.

If you are considering making a special needs trust a part of your estate plan, here's what you should know about the different types of SNTs, and how our legal counselors can help you protect your family member's future.

The Limitations of a Traditional Estate Plan: When You Might Need an SNT

Setting aside assets and inheritances for beneficiaries is a key part of the estate planning process. Planning for the future is particularly important if you have a family member with special needs, and our clients are often eager to make sure that their loved one has everything they need to live a comfortable and productive life. That's both admirable and understandable.

However, if the person in question has a physical or mental disability or chronic illness and relies on assistance from public programs like Supplemental Security Income (SSI) or Medicaid, passing property or other assets to them directly via a standard estate plan can do a lot more harm than good.

This is because, as needs-based, means-tested entitlements, SSI and Medicaid have strict income limits. Exceeding them isn't difficult—even if you don't consider yourself wealthy by any stretch of the imagination. If you set aside resources for a disabled family member in a traditional will, it will be counted as their income, resulting in a reduction of benefits or potentially causing them to stop entirely.

SSI and Medicaid provide basics like medical treatment and monthly payments that can be used to cover things like food, clothing, and shelter, but you want your loved one to have resources for extras, frills, and luxuries to enhance their quality and enjoyment of life. A special needs trust could be the solution to your problem.

Types of Special Needs Trusts

There are three main types of SNTs: first-party special needs trusts, third-party special needs trusts, and pooled special needs trusts. All three types manage resources for individuals with disabilities or chronic illnesses without jeopardizing eligibility for government benefits. The key difference between first-party, third-party, and pooled SNTs is who funds them. Here's what else you should know about the various types of special needs trusts.

First-Party Special Needs Trust

A first-party SNT, also known as a self-settled SNT, is funded by the person with special needs, using his or her own assets. This type of SNT may be useful for disabled individuals who have—or expect to receive—assets that would make them ineligible for SSI, Medicaid, or other public benefits. You may want to consider a first-party special needs trust if you're receiving an inheritance; a settlement or financial award from a lawsuit, such as a personal injury or medical malpractice case; a workers' compensation claim; or a divorce settlement. A parent, grandparent, legal guardian, or the court can establish an SNT for the benefit of a disabled minor.

Keep in mind that these trusts must be unchangeable—or "irrevocable"—and the beneficiary must be under age 65 when it is established. Additionally, when the beneficiary dies, the Virginia Medicaid program must be reimbursed using money from the trust.

Do you think a first-party special needs trust may be right for you? Contact our firm to discuss your needs.

Third-Party Special Needs Trust

Third-party special needs trusts are established and funded by a donor, usually a parent or other relative, often as part of an estate plan. These trusts can receive gifts from the estate that can be used to supplement the beneficiary's government support during the donor's lifetime. When the donor dies, the same SNT can be used to manage the inheritance of the person with special needs.

Third-party SNTs offer significant advantages compared to other types of special needs trusts. Most notably, because the assets in the trust never belonged to the disabled person, they don't have to be used to reimburse Medicaid after the beneficiary's death. Instead, the donor can designate that they go to other family members or organizations that they care about.

Not only can these trusts be any size, but they can also own investments or real estate, be the beneficiary of life insurance policies, and be used for almost anything that isn't covered by your special needs loved one's government benefits. Additionally, third-party special needs trusts can be set up for beneficiaries of any age, unlike first-party trusts, which can only be established to benefit people under age 65.

Interested in exploring options for establishing a third-party special needs trust for a disabled relative? Talk to us about your needs and goals.

Pooled Special Needs Trusts

Funded by the individual with special needs or by a donor on their behalf, a pooled special needs trust is a type of SNT that's administered by a non-profit organization that manages and invests funds for people with disabilities. Because the funds are pooled together, pooled SNTs can be an affordable option while still providing access to specialized services.

Want to know more about pooled special needs trusts? Schedule a consultation.

Schedule a Consultation for More Information on Special Needs Planning Solutions

Special needs planning can be challenging, but our accomplished attorneys are here to guide you each and every step of the way. Contact us today to schedule an appointment for a consultation to discuss your goals and how we can help you achieve them.

However, there are equally strict rules governing how the trustee for an SNT can use the funds held for the disabled beneficiary. Misuse of special needs trust funds could result in a reduction of their monthly benefits. Don't risk it.

Keep reading to find out how to use SNT funds to enhance your loved one's enjoyment and quality of life without jeopardizing the SSI or Medicaid benefits they need to survive, as well as how the conscientious, compassionate, and capable special needs planning attorneys with Cucinelli Geiger, PC can assist you with trust formation and administration.

Special Needs Trust Funds Can't Be Used to Pay for Basic Needs

Special needs trusts are intended to supplement a disabled individual's government benefits, not replace them. As a result, you can't use money from the trust to pay for anything that SSI or Medicaid covers or may cover in the future, which essentially rules out all necessities. If you spend trust funds on anything that is a basic need, it could be considered "income" or a "countable asset" for the purpose of determining your loved one's eligibility for means-tested programs. Understanding what you can't pay for with trust money is absolutely imperative. Examples include:

• Rent or mortgage payments
• Utilities like electricity, gas, and water
• Hookup or connection charges (for utilities)
• Property taxes
• Homeowners or condo association dues
• Homeowners insurance (when coverage is required in the mortgage agreement)
• Medical treatment covered by Medicaid
• Clothing
• Food (either from restaurants or grocery stores; however, the occasional meal out is allowed as a "gift")
• Direct cash payments are always prohibited
• Debit cards, gift cards, or other cash equivalents
• Gifts given to others on behalf of the disabled beneficiary

Funds in an SNT Can Be Used to Pay for Things That Improve the Beneficiary's Quality of Life

The trust can pay for extras, frills, and luxuries that enrich your loved one's quality of life and enhance their dignity, productivity, and comfort because these are considered non-countable assets. Examples include:

• One home
• One vehicle
• Furniture
• Appliances
• Home furnishings
• Computer
• Cell phone
• Job training
• Experimental or alternative therapies
• Vitamins and supplements
• Massage therapy
• Vacations
• Summer camps
• Travel expenses (excluding food costs)
• Yoga classes
• Gym membership
• Cable TV or streaming services
• Internet
• Tickets to special events
• Transportation costs
• Home improvements
• Academic or recreational classes
• Non-food grocery items (like laundry or hygiene products)
• Pets and pet supplies
• Estate planning services

Though extensive, the above list is far from exhaustive. If you are not sure if an expense you're considering could jeopardize your loved one's benefits, don't risk it. We can help.

Experienced Virginia Special Needs Planning Lawyers

Leave the guesswork out of special needs trust establishment and administration. At Cucinelli Geiger, PC, we'll carefully assess your situation and help you determine which type of special needs trust is right for your disabled family member. We'll be there with you each and every step of the way—from advising you on options for funding the trust to evaluating your loved one's current and future care needs.

Find Out How We Can Help You Achieve Your Goals

Contact us today to schedule an appointment to discuss your special needs planning concerns and goals with a member of our accomplished legal team. The help you need is just a click away.

Watching an elderly parent struggle to care for themselves can be heartbreaking. If your parent can no longer direct their personal affairs, a guardianship can help protect them and their interests. Here's what you should know about becoming the guardian of an elderly parent in Virginia, including how the skilled elder law attorneys with Cucinelli Geiger, PC can guide you through each and every step of the process.

Guardianship Basics

In the Old Dominion, adult guardianship is a legal process used to protect elderly adults who are unable to adequately care for their own needs. A guardianship grants an adult child—or, in some cases, another eligible individual—the legal authority to make decisions regarding an elderly parent's personal care.

However, before you can become a legal guardian and assume the role of decision-maker for an aged parent, a Virginia circuit court must deem them incapacitated and incapable of directing their own affairs. Testimony from a parent's treating physician, as well as from friends or family members who've witnessed their inability to care for themselves, can be used as evidence to support a claim of incapacity.

When Guardianship May Be Necessary

Unfortunately, as people age, caring for themselves can become more and more difficult. Your once-sharp parent may suddenly have trouble maintaining their hygiene, remembering to take vital medications, keeping their residence in a safe and livable condition, stocking the fridge and pantry, or even eating. In elderly people, the need for a guardianship is often due to the effects of dementia, mental illness, diseases like Alzheimer's or Parkinson's, or other forms of incapacity.

What it Means to Be a Guardian for an Elderly Parent

A guardian has a number of important duties and responsibilities related to an elderly parent's support, care, health, safety, treatment, and residence. When serving as a guardian, you'll be responsible for making decisions about things that directly affect your parent's daily life. Duties and responsibilities may include:

• Obtaining medical care or services when needed
• Advocating for your parent's best interests
• Consulting with healthcare and social service providers as necessary
• Thoroughly understanding the risks and benefits of any proposed interventions
• Providing consent for medical treatments
• Determining where your parent will live
• Monitoring their residence for safety, cleanliness, and livability
• Applying for government benefits
• Providing consent for and monitoring non-medical care services, such as counseling
• Consenting to the release of your parent's confidential information
• Acting as a representative payee for your parent's Social Security benefits
• Making end-of-life care decisions
• Managing your parent's social environment
• Maximizing your parent's independence in the least restrictive manner whenever possible
• File an annual report with the court

Considering your parent's wishes whenever possible is an important part of serving as an adult guardian. However, as a guardian, you're permitted to act contrary to their expressed wishes when it is in their best interest.

Becoming a Guardian

In Virginia, pursuing guardianship of an elderly parent requires going through a complex legal proceeding. Here is a brief overview of the process:

• Filing a petition with the Virginia Circuit Court is the first step to obtaining guardianship of an elderly parent. File the petition in the city or county where your parent lives. If your parent is currently in a nursing home or care facility, file the petition in the city or county where they lived prior.
• Your parent, the respondent, will receive a copy of the petition, be notified of the upcoming guardianship hearing, and be advised of their legal rights. Your other parent and grandparents (if living), aunts and uncles, and siblings will also be notified. In the absence of such relations, three living relatives will be notified. Your parent has the right to legal representation during the guardianship process, as well as to be present at a trial and cross-examine witnesses to their alleged incapacity.
• The court will appoint a third-party attorney, known as a guardian ad litem, to investigate. As part of their investigation, the guardian ad litem will speak with you and meet with your parent. They will also interview your parent's friends, family members, neighbors, and treating physicians. After completing their investigation, the guardian ad litem will make their recommendation to the court.

When a Parent Can't Manage Their Finances

If your parent has lost the capacity to manage their personal affairs, you may also find that they can no longer competently direct their estate or finances. Has your parent become forgetful about paying bills or had utilities switched off due to non-payment? If so, you may also want to consider pursuing a conservatorship. This legal arrangement would allow you or another appointed individual to handle your parent's financial affairs. Considering a conservatorship is particularly important if your elderly parent is at risk for financial exploitation.

Less Restrictive Alternatives to Guardianship and Conservatorship

When it comes to caring for relatives, guardianships and conservatorships should be considered options of last resort, as they involve taking a number of the respondent's basic rights. For example, under guardianship or conservatorship, your parent might not be able to vote, get married, sign legal documents, or make their own medical decisions. Consider whether the following alternatives may be sufficient.

• Durable powers of attorney. A durable medical power of attorney would allow you to make medical decisions on your parent's behalf when they're unable to do so. Likewise, a durable power of attorney would allow you to make decisions regarding your parent's estate and finances when they can't make those decisions for themselves.
• Limited guardianship or conservatorship. In a limited guardianship or conservatorship, you would be given the legal authority to make certain decisions on your parent's behalf. However, they would retain decision-making power in other areas.

Public Guardianship Options

In some cases, your parent may need a guardian, but distance, career, work, health, or other obligations may prevent you from filling that role. Fortunately, when a family member can serve as a guardian, there are other options. For example, your parent could become a ward of the state, and a public guardian would be appointed to assist them.

Helping You Navigate the Complex Guardianship Process

Seeking guardianship of an elderly parent can be a difficult decision—and the process to obtain guardianship can be costly, time-consuming, and emotionally challenging. Let us help. We'll assist you in gathering the evidence necessary to prove your parent's incapacity and guide you through each and every step of the process.

Request a Consultation

Contact us today to schedule an appointment for a consultation to discuss your guardianship matter with a member of our accomplished legal team.

At Cucinelli Geiger, PC, our team of experienced and understanding Virginia attorneys helps clients explore their legal options for caring for incapacitated individuals. If you are considering pursuing a guardianship or conservatorship for an incapacitated loved one or fighting back against an arrangement you don't feel is in a family member's best interest, you have come to the right place. Here's what you should know about contested guardianships and conservatorships, including some of the most common grounds for objections.

Incapacity in Virginia

Legal incapacitation is more than simply exercising poor judgment. Virginia law defines it as being incapable of effectively receiving and evaluating information or responding to people, events, or environments to the extent that the person in question lacks the capacity to:

1. Meet essential requirements for health, care, safety, or therapeutic needs without the assistance or protection of a guardian
2. Manage property or financial affairs or support legal dependents without the assistance or protection of a conservator

Obtaining a guardianship or conservatorship for a close friend or family member requires providing proof of incapacity, and showing that the individual makes poor choices usually isn't enough. Discuss your options with one of our exceptional attorneys.

Guardianship vs. Conservatorship

While guardianships and conservatorships serve similar functions, the terms aren't interchangeable. They are defined as follows:

• Guardianship. This court process appoints a guardian to direct an incapacitated individual's personal affairs, making decisions regarding their safety, support, treatment, health, education, and residence.
• Conservatorship. This legal proceeding appoints a conservator to handle the estate and financial matters for the incapacitated person (known as the conservatee).

The court can appoint a guardian to handle the individual's personal affairs or a conservator to direct their finances. If the person needs help managing both personal and financial matters, the court may opt to appoint a guardian and a conservator. This could be one single person, two separate individuals, or multiple people sharing the roles as co-guardians or co-conservators.

Grounds for Contesting a Guardianship or Conservatorship

The Person Isn't Truly Incapacitated

Contesting a guardianship or conservatorship that you feel is unnecessary requires showing that the proposed ward or conservatee is capable of making important decisions for themselves and managing the daily activities of living. Testimony from treating physicians, as well as friends, family members, and neighbors, can help support your position that such significant supervision and wide-ranging restrictions aren't needed.

There Is a Less Restrictive Alternative

Because guardianships and conservatorships take away an incapacitated individual's rights, less restrictive alternatives should be explored whenever possible. Examples of less extreme options include:

• Durable medical power of attorney, which gives a person the legal ability to make medical decisions for another individual when they're unable to do so.
• Durable power of attorney, which grants a person the legal authority to make decisions regarding another individual's money and property when they're not able to.
• Representative payee, which is a person appointed by the Social Security Administration (SSA) to manage a recipient's benefits.
• Limited guardianship/conservatorship, in which the court appoints an individual (or individuals) to help make certain decisions for a person who requires assistance but isn't fully incapacitated.

There Are Existing Power of Attorney Documents in Place

Individuals may also have grounds to contest a guardianship or conservatorship if the incapacitated person has valid power of attorney documents in place, as they essentially serve similar functions but with fewer restrictions. For example, if a person has a durable power of attorney to make medical decisions for them when needed, a guardianship may not be necessary. Likewise, if a person has a power of attorney to direct financial matters on their behalf, a conservatorship may not be needed.

The Person Seeking to Serve as Guardian or Conservator Is Unfit

Making sure the right guardian or conservator is appointed to direct your loved one's affairs is vital. You may have grounds to contest a proposed guardian or conservator as unfit if they:

• Have a criminal record
• Have a history of violent behavior
• Have a history of drug or alcohol abuse
• Are incapable of understanding or providing for the incapacitated individual's personal needs
• Are unable to appropriately manage a conservatee's estate and finances
• Have a history of making poor financial decisions
• Were previously responsible for caring for the incapacitated individual but neglected their duties

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Is your loved one's guardianship or conservatorship being contested? Are you considering contesting an arrangement or individual that isn't right for your family member? Contact us to schedule a consultation to discuss your legal situation and goals and find out how we can help.

Differing Roles and Responsibilities

In Virginia, the roles and responsibilities of guardians differ from those of conservators in the following ways:

• In a guardianship, the guardian is responsible for directing an incapacitated person's personal affairs. This means that they have the legal authority to make decisions regarding their ward's support, safety, health, treatment, education, living situation, etc.
• In a conservatorship, the conservator is responsible for handling the conservatee's estate and finances. Duties may include paying bills, entering into (or rejecting) legal agreements or contracts, managing investments and insurance policies, and more.

When Guardians or Conservators Are Necessary

When an adult lacks the capacity to make important decisions for themselves or manage the daily activities of living, a guardianship or conservatorship can help provide for their needs and protect them from potential exploitation and abuse. However, before the court can appoint a guardian or conservator, you must first provide evidence that the individual in question is truly incapacitated. This involves showing that they aren't capable of effectively receiving and evaluating information or responding to people, environments, and events to the extent that they can't do one or both of the following:

• Meet basic requirements for support, health, safety, care, or therapeutic needs without the help of a guardian
• Manage their estate or financial matters, or provide for the support of dependents without a conservator's assistance

While exercising poor judgment can be a factor in showing that a family member lacks capacity, it usually isn't sufficient proof that a loved one is incapacitated.

Filling the Roles

If your loved one only needs assistance handling their personal affairs, a judge will appoint a guardian. Likewise, if they only need help directing their financial affairs, the judge will appoint a conservator. However, if the incapacitated individual requires assistance with both personal and financial matters, the judge may appoint a separate guardian and conservator or appoint one person to serve both roles. In some cases, multiple people may be appointed to serve as co-guardians or co-conservators.

When Guardianship or Conservatorship Duties End

Typically, a guardian's or conservator's duties end in response to one of the following events:

• The ward or conservatee dies
• The ward or conservatee has their capacity restored
• The guardian or conservator resigns or is removed by the court

Helping You Become a Guardian or Conservator

Pursuing a guardianship or conservatorship for an incapacitated family member on your own can be costly, time-consuming, and emotionally challenging. Our attorneys can handle the process from start to finish to ensure that everything goes as quickly and as smoothly as possible. Our team can help you:

• Explore less restrictive alternatives to guardianship and conservatorship, such as power of attorney documents
• Gather the evidence necessary to prove your loved one's incapacity to the court
• Complete guardianship or conservatorship legal forms
• Prove you're capable of serving as a guardian or conservator for a loved one
• Handle the administration of your duties

Schedule a Consultation

Trying to pursue a guardianship or conservatorship for an incapacitated loved one by yourself can be complicated and overwhelming, and there's far too much at stake to go it alone. Fortunately, you don't have to. At Cucinelli Geiger, PC, our caring and capable legal counselors can guide you through each and every step of the guardianship or conservatorship proceeding and even help you fulfill your duties in these roles. Contact us today to schedule an appointment for a consultation to discuss your needs and goals.