H. B. 4672
(By Delegates Rowe, J. Smith, Douglas,
Compton, Capito, Smirl and Coleman)
[Introduced February 24, 2000; referred to the
Committee on the Judiciary.]
A BILL 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 two, four, ten and thirteen,
article two of said chapter; to amend and reenact sections
four, eight, eleven, thirteen and fourteen, article three of
said chapter; and to further amend said article three, by
adding thereto a new section, designated section seventeen,
all relating generally to guardians and conservators; adding
definitions; adding and addressing qualifications; addressing
de facto guardians and conservators; addressing liability of
guardians and conservators; providing criminal penalties; and
allowing for the creation of citizen guardianship panels.
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 two, four, ten and thirteen, article two of said chapter
be amended and reenacted; that sections four, eight, eleven,
thirteen and fourteen, article three of said chapter be amended and
reenacted; and that said article three, be amended by adding
thereto a new section, designated section seventeen, all to read as
follows:
ARTICLE 1. DEFINITIONS AND GENERAL PROVISIONS.
§44A-1-3. Advance directives.
The existence of an advance directive such as a living will,
medical power of attorney, or 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 shall 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" shall mean or include 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
medical 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.
(2) (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" shall mean
or include means or includes a "limited guardian" or a "temporary
guardian."
(3) "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, will not be considered 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.
(4) (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.
(5) (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.
(6) (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.
(7) "Person" means, generally, a natural person, any
corporation, association, partnership or other business entity, any
political subdivision or other public agency, or any estate, trust
or other collection of properties to which the law attributes the
capacity of having rights or duties.
(8) (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.
(9) (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.
(10) (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.
(11) (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
fiduciary 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, and/or coconservators, or
both: Provided, however, That such 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 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. The court may not
appoint any person who has been convicted of a felony within
fifteen years immediately preceding the date of appointment.
(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 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 such nonprofit corporations and shall
provide for the review of such the 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 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 such 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
such 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 such 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 shall is
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 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 such a surety and in such
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
such 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
such the 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-1-10. Mandatory education.
(a) Any individual appointed to serve as a guardian or
conservator shall must receive educational material or complete
mandated educational training, unless otherwise directed by the
court the court enters an order making specific findings of fact
and conclusions of law that an individual does not require educational training to perform the duties of a guardian or
conservator.
(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 shall 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 such 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 no later than
one year after the effective date of this act 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. Such 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-2-2. 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, 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 or
has assumed responsibility 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;
(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 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.
(a) 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.
(b) In addition to the creation of the list required in
subsection (a) of this section, the petitioner shall make a
reasonable search to determine whether there has been any person
acting as a de facto conservator and file a report detailing the
search and the results of this determination, including a listing
with reasonable detail of the acts performed by the de facto
conservator on behalf of the protected person.
§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 thereof 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 shall be 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
waived by the court the court makes specific findings that an
individual does not need educational training.
(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, shall in addition, have 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 or private sale, for
cash or for credit, the personal property of the estate;
(6) To perform a contract entered into by a protected person,
including a contract to convey or purchase real or personal
property;
(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 such a condition that it is of no benefit to the estate;
(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 ninety 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. 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 violating 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) Except as provided in subsection (b) of this section,
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, within sixty days following the first
anniversary of the appointment and:
(1) At least annually 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 such the
termination; and in the case of a conservator, no accounting will
be is required if the all persons entitled to any of proceeds of
the estate consent thereto.
(b) Reports of guardians and accountings of conservators of
estates valued at twenty thousand dollars or more, shall be filed
with the circuit clerk of the county in which appointed on a
quarterly 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 will be required if
all persons entitled to any proceeds of the estate consent thereto.
(b) (c) 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 violating 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-3-13. 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 shall not be is not liable for the acts of the
protected person, unless the guardian is personally negligent, nor
shall is a guardian be 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.
§44A-3-17. Citizen guardianship panel.
(a) A circuit court judge may appoint a citizen guardianship
panel to review the filings of guardians and conservators filed
pursuant to subsection (a), (b) or (c), section eleven of this
article. This panel may make recommendations to the court or any
individual guardian or conservator regarding the filings.
(b) The panel is to be comprised of three to fifteen volunteer
members to serve specific terms as designated by the judge at time
of appointment. Each panel must consist of at least one member
with a background in accounting and one member with a background in
the field of professional mental health care and services.
(c) Any program established by the bureau of senior services
within the circuit may provide a list of volunteers qualified to
serve on the panel to the circuit court judge prior to the
appointment of members of the panel.
(d) Once appointed, as directed by the judge from time to
time, the panel is authorized to review all filings of guardians
and conservators for timeliness and as to their substantial content. The court may order, sua sponte or at the request of any
interested person, the panel to perform a detailed review or audit
of the information provided in the filings made on behalf of any
protected person. The panel shall report the findings of any
review or audit to the court or local prosecuting attorney.
NOTE: The purpose of this bill is to amend the law regarding
guardianship and conservatorship. The bill adds definitions and
adds and addresses qualifications. It also addresses de facto
guardians and conservators and liability of guardians and
conservators. It provides criminal penalties and allows for the
creation of citizen guardianship panels.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§44A-3-17 is new; therefore, strike-throughs and underscoring
have been omitted.