Participant in a coma

[dmb]

If a particpant in a DB planis in a coma, what is the procedure as far as getting the participant to waive the J&S for distribution purposes?? The spouse would like to roll the money from the plan. Does she need power of atty?? or a court order?? Any help would be appreciated. Thanks.

[QDROphile]

What did the plan say when you asked it this question?

[Guest crosseyetester]

This seemed about the best lead I could find for my question....

The participant's spouse is the one in a coma with no POA. The participant would like to begin benefits as a single life form of benefit. How would the participant get spousal consent to do this?

[J Simmons]

A court appointed conservator for the comatose spouse should be able to give the consent, particularly if it is not the participant him/herself.

[Peter Gulia]

If the person whose consent is called for is “legally incompetent”, ERISA and the Internal Revenue Code do not preclude a plan from recognizing a guardian’s act as the spouse’s consent, even if the electing participant is the spouse’s guardian. 26 C.F.R. § 1.401(a)-20/Q&A-27. Under a U.S. government-organization plan, the Treasury department’s interpretation also is relevant concerning ERISA § 205. 43 Federal Register 47713 (August 10, 1978).

Even if a plan is ERISA-governed, a guardian’s authority is grounded on State law. A guardian must act in the best interests of his or her ward. A guardian serves under a court’s supervision (at least indirectly), and must account for his or her actions. Further, some guardianship decisions require a court’s approval before the guardian implements the decision. Depending on the powers granted and other State law, the guardian might need to persuade a court that choosing against a survivor annuity is the ward’s best interest.

[Mike Preston]

Besides the very practical answer that I would be worried if a plan insisted on a J&S benefit of any kind, as the life expectancy of this individual is far less than what a normal life expectancy would be and the reduction under the terms of the plan would be very, very suspect. At least, I wouldn't want to be the fiduciary that went down the path of approving that form of benefit.