West Virginia Code 44A-3-7 – Estate planning
(a) Upon petition, the court may authorize a conservator to exercise the following powers over the estate or financial affairs of a protected person which the protected person could have exercised if he or she were not subject to conservatorship:
Terms Used In West Virginia Code 44A-3-7
- Annuity: A periodic (usually annual) payment of a fixed sum of money for either the life of the recipient or for a fixed number of years. A series of payments under a contract from an insurance company, a trust company, or an individual. Annuity payments are made at regular intervals over a period of more than one full year.
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Charity: An agency, institution, or organization in existence and operating for the benefit of an indefinite number of persons and conducted for educational, religious, scientific, medical, or other beneficent purposes.
- Conservator: means a person appointed by the court who is responsible for managing the estate and financial affairs of a protected person, and, where the context plainly indicates, the term "conservator" means or includes a "limited conservator" or a "temporary conservator". See West Virginia Code 44A-1-4
- Estate: means real and personal property or any interest in the property and means anything that may be the subject of ownership. See West Virginia Code 44A-1-4
- Intestate: Dying without leaving a will.
- Liabilities: The aggregate of all debts and other legal obligations of a particular person or legal entity.
- Person: means , generally, a natural person, any corporation, association, partnership or other business entity, any political subdivision or other public agency, public official or any estate, trust or other collection of properties to which the law attributes the capacity of having rights or duties. See West Virginia Code 44A-1-4
- Protected person: means an adult individual, eighteen years of age or older, who has been found by a court, because of mental impairment, to be unable to receive and evaluate information effectively or to respond to people, events, and environments to such an extent that the individual lacks the capacity: (A) To meet the essential requirements for his or her health, care, safety, habilitation, or therapeutic needs without the assistance or protection of a guardian. See West Virginia Code 44A-1-4
- Trustee: A person or institution holding and administering property in trust.
(1) To make gifts to charity or other donees and to convey interests in any property;
(2) To provide support for individuals who are not legal dependents;
(3) To amend or revoke trusts or to create or make additions to revocable or irrevocable trusts even though such trusts may extend beyond the life of the protected person;
(4) To disclaim, renounce, or release any interest or power, or to exercise any power;
(5) To exercise options or change the beneficiary on or withdraw the cash value of any life insurance policy, annuity policy, or retirement plan;
(6) To elect against the estate of the protected person’s spouse;
(7) To withdraw funds from multiple party bank accounts, to change the beneficiary on or dispose of any payable or transfer on death arrangement, or to dispose of any property specifically devised or bequeathed under the protected person’s will.
(b) The court, in authorizing the conservator to exercise any of the above powers, shall primarily consider the decision which the protected person would have made, to the extent that the decision can be ascertained. The court shall also consider the financial needs of the protected person and the needs of legal dependents for support, possible reduction of income, estate, inheritance or other tax liabilities, eligibility for governmental assistance, the protected person’s prior pattern of giving or level of support, the existing estate plan, the protected person’s probable life expectancy, the probability that the conservatorship will terminate prior to the protected person’s death, and any other factors which the court believes pertinent.
(c) No order may be entered under this section unless notice of hearing is first given to the protected person, to the beneficiaries of the protected person’s estate plan and to the individuals who would succeed to the protected person's estate by intestate succession. No trust may be amended or revoked without prior notice of hearing to the trustee thereof.
(d) In making a determination under this section, the court shall be entitled to compel the production of documents, including the protected person's will.
(e) Nothing in this section shall be construed to create a duty on the part of a conservator to revise a protected person's estate plan.