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.

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.

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.

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.

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.