ENROLLED

COMMITTEE SUBSTITUTE

FOR

H. B. 4672

(By Delegates Rowe, J. Smith, Douglas, Compton, Capito, Smirl



and Coleman)


[Passed March 11, 2000; in effect July 1, 2000.]


AN ACT to amend and reenact sections three, four, eight, nine and ten, article one, chapter forty-four-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact sections one, two, four, ten and thirteen, article two of said chapter; and to amend and reenact sections four, eight, eleven, thirteen and fourteen, article three of said chapter, all relating generally to guardians and conservators; adding definitions; adding and addressing qualifications; clarifying educational requirements; addressing de facto guardians and conservators; addressing liability of guardians and conservators and sureties; creating misdemeanor for certain violations; providing criminal penalties; creating a special revenue fund; increasing filing fees for petitions for appointment as guardian or conservator; requiring state auditor to conduct annual examination of accounts; requiring state auditor to prescribe forms for use by conservators and guardians; requiring additional information in petitions for appointment as guardian or conservators; providing notice of sale or abandonment of property of estate of protected person; and requiring biannual reports by conservators within the first year.

Be it enacted by the Legislature of West Virginia:

That sections three, four, eight, nine and ten, 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 sections one, two, four, ten and thirteen, article two of said chapter be amended and reenacted; and that sections four, eight, eleven, thirteen and fourteen, article three of said chapter be amended and reenacted, all to read as follows:

ARTICLE 1. DEFINITIONS AND GENERAL PROVISIONS.

§44A-1-3. Advance directives.

The existence of a living will, medical power of attorney, durable power of attorney or other advance directive, duly executed by a person alleged to be a "protected person", as defined in section four of this article, or the prior appointment of a surrogate decision-maker for the protected person may eliminate, limit or supersede the need for the assistance or protection of a guardian or conservator, and any person so appointed is to be the first preferred nominee for guardian or conservator, as set forth in section eight, article two of this chapter.
§44A-1-4. Definitions.
As used in this chapter, unless a different meaning is clearly required by the context:
(1) "Conservator" means a person appointed by the court who is responsible for managing the estate and financial affairs of a protected person, and, where the context plainly indicates, the term "conservator" means or includes a "limited conservator" or a "temporary conservator."
(2) "De facto guardian" means a person who is not the medical power of attorney representative or appointed surrogate and has assumed substantial responsibility for any of the personal affairs of another person later found to be a protected person.
(3) "De facto conservator" means a person who is not the power of attorney representative or appointed surrogate and has assumed substantial responsibility for managing any portion of the estate and financial affairs of another person later found to be a protected person.
(4) "Estate" means real and personal property or any interest in the property and means anything that may be the subject of ownership.
(5) "Guardian" means a person appointed by the court who is responsible for the personal affairs of a protected person, and, where the context plainly indicates, the term "guardian" means or includes a "limited guardian" or a "temporary guardian."
(6) "Interested person" means:
(A) An individual who is the subject of a guardianship or conservatorship proceeding;
(B) A guardian or conservator of a protected person; and
(C) Any other person with an actual and substantial interest in the proceeding, either generally or as to a particular matter, as distinguished from a person who has only a nominal, formal, or technical interest in or connection with the proceeding.
(7) "Limited conservator" means a person appointed by the court who has only those responsibilities for managing the estate and financial affairs of a protected person, as specified in the order of appointment.
(8) "Limited guardian" means one appointed by the court who has only those responsibilities for the personal affairs of a protected person, as specified in the order of appointment.
(9) "Living will" means a living will existing and duly executed in accordance with the provisions of section three, article thirty, chapter sixteen of this code.
(10) "Medical power of attorney" means a power of attorney existing and duly executed in accordance with the provisions of section six, article thirty-a, chapter sixteen of this code or existing and executed in accordance with the laws of another state.
(11) "Missing person" means an adult individual, eighteen years of age or older, who is absent from his or her usual place of residence in the state and whose whereabouts are unknown for a period of six months or more.
(12) "Person" means, generally, a natural person, any corporation, association, partnership or other business entity, any political subdivision or other public agency, public official or any estate, trust or other collection of properties to which the law attributes the capacity of having rights or duties.
(13) "Protected person" means an adult individual, eighteen years of age or older, who has been found by a court, because of mental impairment, to be unable to receive and evaluate information effectively or to respond to people, events, and environments to such an extent that the individual lacks the capacity: (A) To meet the essential requirements for his or her health, care, safety, habilitation, or therapeutic needs without the assistance or protection of a guardian; or (B) to manage property or financial affairs or to provide for his or her support or for the support of legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgment, alone, is not sufficient evidence that the individual is a protected person within the meaning of this subsection. "Protected person" also means a person whom a court has determined is a missing person.
(14) "Surrogate decision-maker" means an individual identified as such by an attending physician in accordance with the provisions of section seven, article thirty-b, chapter sixteen of this code.
§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 a showing by the individual of the necessary education, ability and background to perform the duties of guardian or conservator and upon a 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, coconservators, or both: Provided, however, That the 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. Any person being considered by a court for appointment as a guardian or conservator shall provide information regarding any crime, other than traffic offenses, of which he or she was convicted. The court shall consider this information in determining the person's fitness to be appointed a guardian or conservator.
(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 the 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 nonprofit corporations and shall provide for the review of the licenses. The rules shall, at a minimum, establish standards to assure that any corporation licensed for 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 guardian or conservator may 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 the 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 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, but an 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 any sheriff was initially appointed as guardian 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 conservator but the 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 is not 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 has 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 a surety and in an amount and form as the court may order, and the court may order additional bond or reduce the bond whenever the court finds that a 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 the estate.
(e) The following requirements and provisions apply to any bond which the court may require under this section:
(1) 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-1-10. Mandatory education.

(a) Any individual appointed to serve as a guardian or conservator must receive educational material or complete mandated educational training, unless the court enters an order stating that the individual does not require the mandated educational training because he or she has completed the mandated educational training within the last three years.
(b) Upon a determination that the individual who is the subject of proceedings under this chapter is a protected person, as defined in section four of this article, the required educational training must be completed within thirty days of the court's determination. Upon completion, the appointed guardian or conservator shall provide an affidavit to the court, certifying that the educational training has been completed, and the court shall forthwith issue the order of appointment in accordance with the provisions of section thirteen, article two of this chapter.
(c) The secretary of health and human resources shall develop and implement an educational program for guardians and conservators. The secretary shall also propose legislative rules for promulgation, in accordance with the provisions of chapter twenty-nine-a of this code, regarding mandatory educational training for guardians and conservators. The educational training may include the following:
(1) Written materials;
(2) Recorded information, whether audio, visual or both; or
(3) A combination of the above.
ARTICLE 2. PROCEDURE FOR APPOINTMENT.
§44A-2-1. Filing of petition; jurisdiction; fees; special revenue account established; duties of auditor

(a) A petition for the appointment of a guardian or conservator shall be filed with the clerk of the circuit court in the county in which the alleged protected person resides, or, if an alleged protected person has been admitted to a health care or correctional facility, in the county in which that facility is located. A petition for the appointment of a conservator for a missing person shall be filed with the clerk of the circuit court in the county in which the missing person last resided.
(b) The circuit court in which the proceeding is first commenced shall have exclusive jurisdiction unless that court determines that a transfer of venue would be in the best interests of the person alleged to need protection.
(c) The fee for filing a petition shall be ninety dollars, payable upon filing to the circuit clerk, seventy-five dollars of which shall be retained by the circuit clerk and fifteen dollars of which shall be remitted by the circuit clerk to the special revenue account in the state treasury created in subsection (d) of this section. The person bringing the petition shall be responsible for fees for filings of the petition and other papers, for service of process, and for copies of court documents and transcripts. In the event that a guardian, conservator, or both, is appointed by the court, such fees shall be reimbursed to the individual who filed the petition from the protected person's estate, if funds are available. Any person who is pecuniarily unable to pay such fees and costs as set forth in article one, chapter fifty-nine of this code and article two, chapter fifty-one of this code will not be required to pay said fees and costs.
(d) There is hereby created in the state treasury a special revenue account, which shall be an interest bearing account, to be known as the "enforcement of guardianship and conservatorship act fund".
(e) The accounts established pursuant to the provisions of this chapter shall be examined annually by the state auditor in accordance with the provisions of section seven, article nine, chapter six of this code, and the state auditor shall authorize payments from the fund created in subsection (d) of this section for expenses incurred in performing such examinations.
§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 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, by a person acting as a de facto guardian or de facto 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 the person's care or custody, any person acting as a de facto guardian or de facto conservator or any medical power of attorney representative or appointed surrogate, and a detailed list of the acts performed by such person on behalf of the protected person.
(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 of those documents, if available;
(5) The name, post office address and phone number of the attorney representing the petitioner in the petition and appointment proceedings;
(6) Whether the person's incapacity will prevent attendance at the hearing and the reasons therefor;
(7) The type of guardianship or conservatorship requested and the reasons for the request;
(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, criminal history and relationship to the alleged protected person;
(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, criminal history and relationship to the alleged protected person;
(10) The name and post office address of any guardian or conservator currently acting, whether in this state or elsewhere;
(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;
(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; and
(13) If the appointment of a conservator is requested for a missing person, the specific circumstances under which the person is considered missing.
§44A-2-4. Statement of financial resources.

Prior to a hearing for a conservatorship, the petitioner shall file a statement of the financial resources of the alleged protected person which shall to the extent known list the person's social security number, list with reasonable detail the approximate value of the person's real and personal property, and the person's anticipated annual gross income and other receipts.
§44A-2-10. Factors to be considered by court.

(a) The court alone shall determine whether a guardian or conservator should be appointed, the type of guardian or conservator and the specific areas of protection, management and assistance to be granted. Any determination that the individual is a protected person shall contain a specific finding that the person meets the definition set forth in section four, article one of this chapter. In making the determination, the court shall consider the suitability of the proposed guardian or conservator, the limitations of the alleged protected person, the development of the person's maximum self-reliance and independence, the availability of less restrictive alternatives including advance directives and the extent to which it is necessary to protect the person from neglect, exploitation, or abuse.
(b) Except as provided in section eight of this article, the selection of the guardian or conservator is in the discretion of the court. The court shall select the individual or entity best qualified to act in the best interest of the protected person, after consideration of the proposed guardian's or conservator's geographic location, familial or other relationship with such person, ability to carry out the powers and duties of the office, commitment to promoting such person's welfare, any potential conflicts of interest, the criminal history of the proposed guardian or conservator and the recommendations of the spouse, the parents, children or other interested relatives, whether made by will or otherwise. The court may only appoint one guardian and one conservator and it need not appoint the same individual or entity to serve as both guardian and conservator.
(c) A guardianship or conservatorship appointed under this article shall be the least restrictive possible, and the powers shall not extend beyond what is absolutely necessary for the protection of the individual.
§44A-2-13. Order of appointment; notice.

(a) An order appointing a guardian or conservator may only be issued by the court upon the following:
(1) The guardian or conservator has subscribed to and filed an oath promising to faithfully perform the duties of the office in accordance with all provisions of this chapter;
(2) Posting of any bond, if required; and
(3) The completion of mandatory education, as required under the provisions of section ten, article one of this chapter, unless the court enters an order stating that an individual does not require educational training because he or she has completed the mandatory education within the last three years.
(b) In addition to the findings of fact and conclusions of law required in section nine of this article, the order shall include the specific areas of protection or assistance granted in the case of a guardian and the specific areas of management and assistance granted in the case of a conservator.
(c) Within fourteen days following the entry of an order of appointment, the guardian or conservator shall mail a copy of the order of appointment, together with a brief statement in large print of rights to seek an appeal for modification or termination, to the protected person and to all individuals and entities given notice of the petition.
ARTICLE 3. GUARDIANSHIP AND CONSERVATORSHIP ADMINISTRATION.
§44A-3-4. Management powers and duties of conservator.

(a) A conservator, in managing the estate, shall act as a fiduciary and serve in the best interests of the protected person and, in addition, has the following powers which may be exercised without prior court authorization, except as otherwise specifically provided:
(1) To invest and reinvest the funds of the estate in accordance with a standard of prudent investing;
(2) To collect, hold, and retain assets of the estate, including land in another state, and to receive additions to the estate;
(3) To continue or participate in the operation of any unincorporated business or other enterprise;
(4) To deposit estate funds in a state or federally insured financial institution, including one operated by the conservator;
(5) To manage, control and sell at public sale, for cash or for credit, the personal property of the estate: Provided, That the conservator has provided written notice by certified mail to those persons named on the petition as the protected person's nearest relatives at their last known address at least fourteen days prior to any sale of the personal property;
(6) To perform a contract entered into by a protected person, including, without limitation, a contract to convey or purchase real property as approved by any court having jurisdiction;
(7) To renew a lease entered into by a protected person as lessor or lessee with or without an option to purchase, including leases for real and personal property and leases and other arrangements for exploration and removal of minerals or other natural resources notwithstanding that the lease or other arrangement may extend beyond the term of the conservatorship;
(8) To borrow money and to place, renew or extend an encumbrance upon any property, real or personal, including the power to borrow from a financial institution operated by the conservator, subject to the provisions of section twelve of this article;
(9) To abandon property when, in the opinion of the conservator, it is valueless or is so encumbered or in a condition that it is of no benefit to the estate: Provided, That the conservator has provided written notice to those persons named on the petition as the protected person's nearest relatives at their last known address at least fourteen days prior to any abandonment of the property: Provided, however, That any items listed in the initial inventory as valueless may be abandoned no sooner than thirty days following the filing of the initial inventory without written notice;
(10) To make ordinary or extraordinary repairs or alterations in buildings or other property and to grant easements for public or private use, or both, with or without consideration;
(11) To vote a security, in person or by general or limited proxy, and to consent to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other enterprise;
(12) To sell or exercise stock subscription or conversion rights and to pay calls, assessments, and any other sums chargeable or accruing against or on account of securities;
(13) To hold a security in the name of a nominee or in other form without disclosure of the conservatorship, so that title to the security may pass by delivery, but the conservator is liable for any act of the nominee in connection with a security so held;
(14) To insure the assets of the estate against damage or loss, and the guardian and conservator against liability with respect to third persons;
(15) To allow, pay, reject, contest or settle any claim by or against the estate or protected person by compromise or otherwise, and to release, in whole or in part, any claim belonging to the estate to the extent it is uncollectible;
(16) To pay taxes, assessments and other expenses incurred in the collection, care and administration of the estate;
(17) To pay any sum distributable for the benefit of the protected person or for the benefit of a legal dependent by paying the sum directly to the distributee, to the provider of goods and services, to any individual or facility that is responsible for or has assumed responsibility for care and custody, to a distributee's custodian under a Uniform Gifts or Transfers Act of any applicable jurisdiction, or by paying the sum to the guardian of the protected person or, in the case of a dependent, to the dependent's guardian or conservator;
(18) To employ persons, including attorneys, accountants, investment advisors, or agents; to act upon their recommendations without independent investigation; to delegate to them any power, whether ministerial or discretionary; and to pay them reasonable compensation;
(19) To maintain life, health, casualty and liability insurance for the benefit of the protected person, or legal dependents;
(20) To manage the estate following the termination of the conservatorship and until its delivery to the protected person, or successors in interest; and
(21) To execute and deliver all instruments and to take all other actions that will accomplish or facilitate the exercise of the powers conferred in accordance with the provisions of this chapter.
(b) Any person acting as a conservator for more than one protected person shall maintain funds for each protected person in separate accounts.
(c) No conservator may make loans from the accounts of the protected person to himself, herself or his or her spouse.
§44A-3-8. Conservator's inventory.

(a) Within sixty days following entry of an order of appointment, a conservator shall file with the court an inventory of the real and personal estate of the protected person which has come into the conservator's possession or knowledge. The inventory shall include, with reasonable detail, a listing of each item of the estate, its approximate fair market value and the type and amount of encumbrance to which it is subject. The inventory shall list with reasonable detail any items that the conservator believes are valueless and intends to abandon. If any real or personal estate comes into the possession or knowledge of the conservator subsequent to the filing of the initial inventory, the conservator shall either amend the inventory or list the same in the next accounting required to be filed with the court, as described in section eight of this article.
(b) A conservator shall mail a copy of the inventory to the individuals and entities who received notice of hearing, as specified in section six, article two of this chapter, no later than fourteen days following its presentation of the inventory.
(c) Any person who knowingly violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five dollars nor than more one hundred dollars.
§44A-3-11. Filing of reports and accountings.

(a) Reports of guardians and accountings of conservators, as described in this article shall be filed with the circuit clerk of the county in which appointed, on a semi-annual basis during the first twelve months of the guardian's or conservator's appointment and:
(1) On the first day of February of each year thereafter;
(2) When the court orders additional reports or accountings to be filed;
(3) When the guardian or conservator resigns or is removed; and
(4) When the appointment of the guardian or conservator is terminated, except that in the case of a guardian, the court may determine that there is no need for a report upon the termination; and in the case of a conservator, no accounting is required if all persons entitled to any of proceeds of the estate consent thereto.
(b) A guardian or conservator may elect to file a periodic report or accounting on a calendar-year basis; however, in no event may such a report or accounting cover a period of more than one year. A calendar-year report or accounting shall be filed with the circuit clerk no later than the fifteenth day of April of the succeeding year.
(d) Any person who knowingly violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five dollars nor than more one hundred dollars.
(e) The state auditor shall prescribe forms for reports required to be filed pursuant to the provisions of this article.
§44A-3-13. Personal liability of guardians.

(a) A guardian shall have a fiduciary duty to the protected person for whom he or she was appointed guardian and may be held personally liable for a breach of that duty, including being required to pay restitution for any embezzled or concealed funds.
(b) A guardian is not liable for the acts of the protected person, unless the guardian is personally negligent, nor is a guardian required to expend personal funds on behalf of the protected person.
§44A-3-14. Personal liability of conservators.

(a) A conservator shall have a fiduciary duty to the protected person for whom he or she was appointed conservator and may be held personally liable for a breach of that duty, including being required to pay restitution for any embezzled or concealed funds.
(b) Unless otherwise provided in the contract, a conservator is not personally liable on a contract entered into in a fiduciary capacity in the course of administration of the estate unless the conservator fails to reveal the representative capacity or to identify the estate in the contract.
(c) A conservator is personally liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if personally negligent.
(d) Claims based upon contracts entered into by a conservator in a fiduciary capacity, obligations arising from ownership or control of the estate, or torts committed in the course of administration of the estate, may be asserted against the estate by proceeding against the conservator in a fiduciary capacity, whether or not the conservator is personally liable therefor.
(e) A successor conservator is not personally liable for the contracts or actions of a predecessor. However, a successor conservator is not immunized from liability for a breach of fiduciary duty committed by a predecessor if the successor learns of the breach and fails to take reasonable corrective action.