Virginia Living Trust With Incapacity Clause
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FAQ
When a revocable trust has one grantor, the trust turns irrevocable when the grantor dies or becomes incapacitated. A legal issue arises with a joint trust that determines whether a revocable trust becomes an irrevocable trust.
This means that the trust belongs to you and that only you can make changes to your trust. You will also name someone as successor Trustee to act on your behalf in the event of your incapacity. In addition, you can elect to name someone else to act as immediate Trustee, if you would prefer.
Many situations can lead to a revocable trust becoming irrevocable. However, the common situations include the incapacitation or the death of the grantor.
Many trust documents define the term incapacity to mean the period after one or more doctors have certified that the person is no longer capable of making financial decisions.
Typically, the settlor (i.e., the person who created and funded the trust) is the trustee until incapacity or death. Upon the settlor's incapacity, the successor trustee will need to obtain whatever certificates the trust document requires in order to establish incapacity and take authority.
