ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 100
(Senators Oliverio, Anderson, Buckalew and Deem, original
sponsors)
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[Passed April 11, 1997; in effect ninety days from passage.]
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AN ACT to amend and reenact sections eight and nine, article one,
chapter forty-four-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to further
amend said article by adding thereto a new section,
designated section fourteen; and to amend and reenact
sections two and six, article two of said chapter, all
relating generally to the guardianship and conservator
appointment process; permitting judges to appoint
coguardians and/or coconservators; altering guardianship and
conservatorship appointment eligibility for sheriffs and the
department of health and human resources; providing that
bond is not required upon appointment of sheriffs and the
department of health and human resources; requiring proof of
bonding to be submitted to the appointing court; modifying
appointment petition; allowing the appointing court authority to protect the alleged protected persons assets
during the petition process; and providing for notice and
opportunity for hearing before a person is appointed
guardian or conservator.
Be it enacted by the Legislature of West Virginia:
That sections eight and nine, article one, chapter forty- four-a of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; that said
article be further amended by adding thereto a new section,
designated section fourteen; and that sections two and six,
article two of said chapter be amended and reenacted, all to read
as follows:
ARTICLE 1. DEFINITIONS AND GENERAL PROVISIONS.
§44A-1-8. Persons and entities qualified to serve as guardian
or conservator.
(a) Any adult individual may be appointed to serve as a
guardian, a conservator, or both, upon determination by the court
that the individual is capable of providing an active and
suitable program of guardianship or conservatorship for the
protected person:
Provided, That the court may, after first
determining it to be in the best interest of the protected
person, appoint coguardians and/or coconservators:
Provided,
however, That such individual is not employed by or affiliated
with any public agency, entity or facility which is providing
substantial services or financial assistance to the protected person.
(b) Any nonprofit corporation chartered in this state and
licensed as set forth in subsection (c) of this section or a
public agency that is not a provider of health care services to
the protected person may be appointed to serve as a guardian, a
conservator, or both:
Provided, That such entity is capable of
providing an active and suitable program of guardianship or
conservatorship for the protected person and is not otherwise
providing substantial services or financial assistance to the
protected person.
(c) A nonprofit corporation chartered in this state may be
appointed to serve as a guardian or conservator or as a limited
or temporary guardian or conservator for a protected person if it
is licensed to do so by the secretary of health and human
resources. The secretary shall propose legislative rules, for
promulgation in accordance with the provisions of chapter twenty- nine-a of this code, for the licensure of such nonprofit
corporations and shall provide for the review of such licenses.
The rules shall, at a minimum, establish standards to assure that
any corporation licensed for such guardianship or
conservatorship:
(1) Has sufficient fiscal and administrative resources to
perform the fiduciary duties and make the reports and accountings
required by this chapter;
(2) Will respect and maintain the dignity and privacy of the protected person;
(3) Will protect and advocate the legal human rights of the
protected person;
(4) Will assure that the protected person is receiving
appropriate educational, vocational, residential and medical
services in the setting least restrictive of the individual's
personal liberty;
(5) Will encourage the protected person to participate to
the maximum extent of his or her abilities in all decisions
affecting him or her and to act in his or her own behalf on all
matters in which he or she is able to do so;
(6) Does not provide educational, vocational, residential or
medical services to the protected person; and
(7) Has written provisions in effect for the distribution of
assets and for the appointment of temporary guardians and
conservators for any protected persons it serves in the event the
corporation ceases to be licensed by the department of health and
human resources or otherwise becomes unable to serve as guardian.
(d) A duly licensed nonprofit corporation that has been
appointed to serve as a guardian or as a conservator pursuant to
the provisions of this article is entitled to compensation in
accordance with the provisions of section thirteen of this
article.
(e) Except as provided in section thirteen of this article,
no guardian or conservator nor any officer, agent, director, servant or employee of any such guardian or conservator shall do
business with or in any way profit, either directly or
indirectly, from the estate or income of any protected person for
whom services are being performed by such guardian or
conservator.
(f) Any bank or trust company authorized to exercise trust
powers or to engage in trust business in this state may be
appointed as a conservator if the court determines it is capable
of providing suitable conservatorship for the protected person.
(g) The department of adult protective services or a
department designated by the
(h) (g) The secretary of the department of health and human
resources shall designate a division or agency under his or her
jurisdiction which may be appointed to serve as a guardian,
a
conservator, or both, for individuals under its care or to whom
it is providing services or financial assistance, but
such appointment may only be made if there is no other
individual, nonprofit corporation,
bank or trust company, or other public agency that is
equally or better qualified and willing to serve:
Provided, That
when
venue is transferred pursuant to the provisions of this
article and any sheriff was initially appointed as guardian
or
conservator or committee for the
person, the department may not refuse to accept the guardianship
appointment. If the department has been appointed as
conservator, it may petition the circuit court to be released as
conservator.
(h) The sheriff of the county in which a court has assumed
jurisdiction may be appointed as
a guardian, a conservator
, or both. but such
appointment may only be made if there is no other individual,
nonprofit corporation or other public agency that is equally or
better qualified and willing to serve:
Provided, That when the department of health and human resources was initially appointed
as conservator for the person, the sheriff may not refuse to
accept the conservatorship appointment. If the sheriff has been
appointed as guardian, he or she may petition the circuit court
to be released as guardian.
(i) Other than a bank or trust company authorized to
exercise trust powers or to engage in trust business in this
state, a person who has an interest as a creditor of a protected
person shall not be eligible for appointment as either a guardian
or conservator of the protected person.
§44A-1-9. Posting of bonds; actions on bond.
(a) The court shall have the discretion to determine whether
the posting of a bond by a guardian, once appointed, is
necessary. No bond is required of any sheriff or representative
of the department of health and human resources appointed as
conservator or guardian.
(b) The court shall require the posting of a bond by a
conservator upon appointment except where the conservator is
excused from posting bond under the provisions of section
eighteen, article four, chapter thirty-one-a of this code. In
determining the amount or type of a conservator's bond, the court
shall consider:
(1) The value of the personal estate and annual gross income
and other receipts within the conservator's control;
(2) The extent to which the estate has been deposited under an arrangement requiring an order of court for its removal;
(3) Whether an order has been entered waiving the
requirement that accountings be filed and presented or permitting
accountings to be presented less frequently than annually;
(4) The extent to which the income and receipts are payable
directly to a facility responsible for or which has assumed
responsibility for the care or custody of the protected person;
(5) The extent to which the income and receipts are derived
from state or federal programs that require periodic accountings;
(6) Whether a guardian has been appointed, and if so,
whether the guardian has presented reports as required; and
(7) Whether the conservator was appointed pursuant to a
nomination which requested that bond be waived.
(c) Any required bond shall be with such surety and in such
amount and form as the court may order, and the court may order
additional bond or reduce the bond whenever the court finds that
such modification is in the best interests of the protected
person or of the estate. The court may allow a property bond in
lieu of a cash bond. Proof of bonding must be submitted to the
court within thirty days of appointment.
(d) In case of a breach of any condition placed on the bond
of any guardian or conservator, an action may be instituted by
any interested person for the use and benefit of the protected
person, for the estate of the protected person or for the
beneficiaries of such estate.
(e) The following requirements and provisions apply to any
bond which the court may require under this section:
(1) Unless otherwise provided by the terms of the approved
bond, sureties are jointly and severally liable with the
guardian/conservator and with each other;
(2) By executing an approved bond of a guardian or
conservator, the surety consents to the jurisdiction of the court
in any proceeding pertaining to the fiduciary duties of the
conservator and naming the surety as a party respondent. Notice
of any proceeding must be delivered to the surety or mailed by
registered or certified mail to the address of the surety listed
with the court in which the bond is filed. If the party
initiating a proceeding possesses information regarding the
address of a surety which would appear to be more current than
the address listed with the court, notice shall also be mailed by
registered or certified mail to the last address of the surety
known to the party initiating the proceeding;
(3) On petition of a successor guardian or conservator or
any interested person, a proceeding may be initiated against a
surety for breach of the obligation of the bond of the preceding
guardian or conservator; and
(4) The bond of the guardian or conservator is not void
after any recovery but may be proceeded against from time to time
until the whole penalty is exhausted.
(f) No proceeding may be commenced against the surety on any matter as to which an action or proceeding against the guardian
or conservator is barred by adjudication or limitation.
§44A-1-14. Temporary protective order.
The court may, at the request of a petitioner or upon its
own motion, issue a temporary protective order prohibiting or
limiting the expenditure, sale or other legal transfer of any
assets of the alleged protected person until the appointment
proceeding has been held.
ARTICLE 2. PROCEDURE FOR APPOINTMENT.
§44A-2-2. Who may file petition; contents.
(a) A petition for the appointment of a guardian, a
conservator, or both, may be filed by the individual alleged to
be a protected person, by a person who is responsible for or has
assumed responsibility for the individual's care or custody, by
the facility providing care to the individual, by the person that
the individual has nominated as guardian or conservator, or by
any other interested person, including, but not limited to, the
department of health and human resources.
(b) A petition for the appointment of a guardian, a
conservator, or both, shall state the petitioner's name, place of
residence, post office address, and relationship to the alleged
protected person, and shall, to the extent known as of the date
of filing, include the following:
(1) The alleged protected person's name, date of birth,
place of residence or location and post office address;
(2) The names and post office addresses of the alleged
protected person's nearest relatives, in the following order:
(i) The spouse and children, if any; or if none
(ii) The parents and brothers and sisters, if any; or if
none
(iii) The nearest known relatives who would be entitled to
succeed to the person's estate by intestate succession as set
forth in article one, chapter forty-two of this code.
Once a relative or several relatives have been identified in
one of the aforementioned categories, relatives in a lower
category do not have to be listed in the petition;
(3) The name, place of residence or location and post office
address of the individual or facility that is responsible for or
has assumed responsibility for the person's care or custody;
(4) The name, place of residence or location and post office
address of any person designated as a surrogate decision-maker
for the alleged protected person, or of any representative or
representatives designated under a durable power of attorney,
medical power of attorney or living will, of which the alleged
protected person is the principal, and the petitioner shall
attach a copy of any such documents, if available;
(5) The name, post office address and phone number of the
attorney representing the petitioner in the petition and
appointment proceedings;
(5) (6) Whether the person's incapacity will prevent attendance
at the hearing and the reasons therefor;
(6) (7) The type of guardianship or conservatorship requested
and the reasons for the request;
(7) (8) The proposed guardian or conservator's name, post office
address and, if the proposed guardian or conservator is an
individual, the individual's age, occupation and relationship to
the alleged protected person;
(8) (9) The name and post office address of a guardian nominated
by the alleged protected person if different from the proposed
guardian or conservator, and, if the person nominated as a
guardian or conservator is an individual, the individual's age,
occupation and relationship to the alleged protected person;
(9) (10) The name and post office address of any guardian or
conservator currently acting, whether in this state or elsewhere;
(10) (11) If the appointment of a limited guardian is requested,
the specific areas of protection and assistance to be included in
the order of appointment; and
(11) (12) If the appointment of a limited conservator is
requested, the specific areas of management and assistance to be
included in the order of appointment.
§44A-2-6. Notice of hearing.
(a) Upon the filing of the petition and evaluation report,
the court shall promptly issue a notice fixing the date, hour and
location for a hearing to take place within sixty days.
(b) The alleged protected person shall be personally served
with the notice, a copy of the petition, and the evaluation report not less than fourteen days before the hearing. The
person may not waive notice, and a failure to properly notify the
person shall be jurisdictional.
(c) A copy of the notice, together with a copy of the
petition, shall be mailed by certified mail, return receipt
requested, by the petitioner, at least fourteen days before the
hearing to all individuals seven years of age or older and to all
entities whose names and post office addresses appear in the
petition. A copy of certified mail return receipts shall be
filed in the office of the circuit clerk on or before the date of
hearing.
(d) The notice shall include a brief statement in large
print of the purpose of the proceedings, and shall inform the
alleged protected person of the right to appear at the hearing,
the right to an attorney and the right to object to the proposed
appointment. Additionally, the notice shall include the
following statement in large print:
POSSIBLE CONSEQUENCES OF A COURT FINDING
THAT YOU ARE INCAPACITATED
At the hearing you may lose many of your rights. A guardian
may be appointed to make personal decisions for you. A
conservator may be appointed to make decisions concerning your
property and finances. The appointment may affect control of how
you spend your money, how your property is managed and
controlled, who makes your medical decisions, where you live, whether you are allowed to vote and other important rights.
(e) No person may be appointed a guardian or conservator
without first receiving proper notice and having the opportunity
for a hearing.