H. B. 4715
(By Mr. Speaker, Mr. Kiss and Delegates Fleischauer,
Ellem, Hrutkay, R. M. Thompson and Amores)
[Introduced February 27, 2004; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §61-3-23 of the code of West Virginia,
1931, as amended, relating to embezzlement by a fiduciary;
adding the crime of embezzlement by misuse of a power of
attorney; and enhancing the penalty when the victim is
incapacitated or sixty-five years of age or older.
Be it enacted by the Legislature of West Virginia:
That §61-3-23 of the code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-23. Destroying or concealing will; embezzlement by
fiduciary; embezzlement by misuse of power of
attorney; penalty.
(a) If any person fraudulently
destroy destroys or
conceal
conceals any will or codicil, with intent to prevent the probate
thereof, he
or she shall be guilty of a felony and, upon conviction
thereof, be confined in
the penitentiary a state correctional
facility not less than one nor more than five years. If any
guardian, personal representative or other fiduciary, shall
wilfully willfully and knowingly fail to make and return an inventory of any personal property (of which an inventory is
required by law to be made) which may come to his
or her hands as
such, or
wilfully willfully and knowingly fail or refuse to produce
any such property for appraisement in the manner required by law,
or
wilfully willfully and knowingly conceal or embezzle any
such
property, he
or she shall be guilty of the larceny thereof; and the
failure of any such guardian, personal representative or other
fiduciary to account for and pay over or deliver, when directed by
the court, as required by law, any money, bullion, bank notes or
other property, determined by the proper officer of court to be due
and payable, shall be prima facie evidence that such guardian,
personal representative or other fiduciary has embezzled the same.
(b) Any person who holds a principal's power of attorney and
who uses or manages the principal's assets or property and, in so
doing, intentionally and unlawfully deprives the principal of
assets or property, real or personal or misuses, misappropriates or
otherwise dissipates funds or assets of the principal for personal
use or gain or without reasonable cause, or misuses any line of
credit of the principal for any purpose not intended by the terms
of the power of attorney, or for purposes not intended by the
principal in the execution of the power of attorney, is guilty of
embezzlement. In the event a person is found guilty under this
subsection and the victim was incapacitated or sixty-five years of
age or older at the time the criminal conduct was perpetrated, the
person shall be incarcerated in a correctional facility for a term
of not less that one nor more than five years in addition to the sentence imposed for embezzlement.
NOTE: The purpose of this bill is to create the crime of
embezzlement by misuse of a power of attorney.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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