H. B. 4463


(By Delegates Modesitt and Schadler)

[Introduced February 9, 2000; referred to the

Committee on the Judiciary then Finance.]





A BILL to amend and reenact section three, article three, chapter forty-four-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to recovery of the assets of persons with mental impairment which were lost to them by the mismanagement of an attorney under a nondurable power.

Be it enacted by the Legislature of West Virginia:

That section three, article three, chapter forty-four-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:

ARTICLE 3. GUARDIANSHIP AND CONSERVATORSHIP ADMINISTRATION.

§44A-3-3. Distributive duties and powers of the conservator of a protected person.

(a) A conservator of a protected person, without the necessity of seeking prior court authorization, shall apply the income and principal of the estate as needed for the protected person's support, care, health, and if applicable, habilitation, education or therapeutic needs. A conservator shall also apply the income and principal as needed for the support of any legal dependents who are unable to support themselves and who are in need of support.
(b) A conservator, when making distributions, shall exercise authority only to the extent necessitated by the protected person's limitations, and shall, where feasible, encourage the protected person to participate in decisions, to act on his or her own behalf, and to develop or regain the capacity to manage the estate and his or her financial affairs. A conservator shall also consider the size of the estate, the probable duration of the conservatorship, the protected person's accustomed manner of living, other resources known to the conservator to be available, and the recommendations of the guardian.
(c) A conservator shall, to the extent known, consider the express desires and personal values of the protected person when making decisions, and shall otherwise act in the protected person's best interests and exercise reasonable care, diligence, and prudence.
(d) A conservator may not revoke or amend a durable power of attorney which has been executed by the protected person without the prior approval of the court.
(e) A conservator shall, for any nondurable power of attorney executed by the protected person prior to commencement of the conservatorship, cause inquiry of all facts relative to the management of the assets of the protected person by the attorney in fact and, for any mismanagement found, the conservator shall take all prudent action, including suit, to restore to the estate of the protected person those assets lost to the protected person or the value thereof.

NOTE: The purpose of this bill is to recover assets of protected persons whose estate has been diminished by the mismanagement of an attorney under a nondurable power of attorney.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.