Senate Bill No. 377
(By Senators Kessler, Deem and Plymale)
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[Introduced February 25, 2009; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §44A-2-7 of the Code of West
Virginia, 1931, as amended, relating to requiring court-
appointed attorneys to disclose fees when a guardian or
conservator is appointed for a nonindigent protected person.
Be it enacted by the Legislature of West Virginia:
That §44A-2-7 of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
ARTICLE 2. PROCEDURE FOR APPOINTMENT.
§44A-2-7. Appointment of counsel.
(a) The court shall appoint legal counsel for the alleged
protected person. In appointing legal counsel, the court shall
consider any known preferences of the alleged protected person.
(b) Legal counsel shall have the following major areas of
concern:
(1) Whether or not a guardian
or conservator is needed;
(2) Limitation of the role of the guardian
or conservator to
the protected person's specific needs--e.g., personal supervisor,
business affairs, medical consent only;
(3) If needed, assure that the person or entity with the
greatest interest in the protected person is appointed;
(4) If needed, assure the adequacy of the bond; and
(5) If needed, assure consideration of proper placement.
(c) In responsibly pursuing the major areas of concern set
forth in subsection (b) of this section, counsel may perform any
or all of the following:
(1) Promptly notify the individual and any caretaker of the
appointment of counsel;
(2) Contact any caretaker, review the file and all other
relevant information;
(3) Maintain contact with the client throughout the case and
assure that the client is receiving services as are appropriate
to the client's needs;
(4) Contact persons who have or may have knowledge of the
client;
(5) Interview all possible witnesses;
(6) Pursue discovery of evidence, formal and informal;
(7) File appropriate motions;
(8) Obtain independent psychological examinations, medical
examinations, home studies, as needed;
(9) Advise the client on the ramifications of the proceeding
and inquire into the specific interests and desires of the
individual;
(10) Subpoena witnesses to the hearing;
(11) Prepare testimony for cross-examination of witnesses to
assure relevant material is introduced;
(12) Review all medical reports;
(13) Apprise the decision maker of the individual's desires;
(14) Produce evidence on all relevant issues;
(15) Interpose objections to inadmissible testimony and
otherwise zealously represent the interests and desires of the
client;
(16) Raise appropriate questions to all nominations for
guardian
or conservator and the adequacy of the bond;
(17) Upon the appointment of a guardian or conservator for a
nonindigent protected person, the court appointed legal counsel
must disclose fees and terms of payment for such fees before
rendering any further services on behalf of the protected person;
(17)(18) Take all steps to limit the scope of guardianship
or conservatorship to the individual's actual needs, and make all
arguments to limit the amount of the intervention;
(18) (19) Ensure that the court considers all issues as to
the propriety of the individual's current or intended placement
and that the limitations are set forth in the order;
(19) (20) Inform the client of the right to appeal, and file
an appeal to an order when appropriate; and
(20) (21) File a motion for modification of an order or a
petition for a writ of habeas corpus if a change of circumstances
occurs which warrants a modification or termination.
(d) The protected person shall have the right to an
independent expert of his or her choice to perform an evaluation
and present evidence.
NOTE: The purpose of this bill is to require court appointed
attorneys to disclose fees in cases where a guardian or
conservator is appointed for a nonindigent protected person.
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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