ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2788
(By Delegates Perry, Staggers, Williams, Ennis,
Talbott, Perdue, Frazier, Fragale, Miley and Caputo)
[Passed April 11, 2009; in effect ninety days from passage.]
AN ACT to amend and reenact §61-2-29 of the Code of West
Virginia, 1931, as amended; and to amend said code by adding
thereto two new sections, designated §61-2-29a and
§61-2-29b, all relating to protecting incapacitated adults;
providing criminal penalties for the offenses of abuse or
neglect of incapacitated adults; providing definitions;
establishing and revising criminal penalties for the
unlawful misappropriation or misuse of funds or assets of an
incapacitated adult by a caregiver; and providing
exceptions.
Be it enacted by the Legislature of West Virginia:
That §61-2-29 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; and that said code be amended
by adding thereto two new sections, designated §61-2-29a and
§61-2-29b, all to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-29. Abuse or neglect of incapacitated adult; definitions;
penalties.
(a) The following words, when used in this section and
sections twenty -nine-a and twenty-nine-b of this article, have
the meaning ascribed, unless the context clearly indicates
otherwise:
(1) "Abuse" means the intentional infliction of bodily
injury on an incapacitated adult;
(2) "Bodily injury" means substantial physical pain, illness
or any impairment of physical condition;
(3) "Caregiver" means any person who has assumed the legal
responsibility or a contractual obligation for the care of an
incapacitated adult, or has voluntarily assumed responsibility
for the care of an incapacitated adult. The term includes a
facility operated by any public or private agency, organization
or institution which provides services to, and has assumed
responsibility for the care of an incapacitated adult.
(4)"Incapacitated adult" means any person eighteen years of
age or older who by reason of advanced age, physical, mental or
other infirmity is unable to carry on the daily activities of
life necessary to sustaining life and reasonable health;
(5) "Neglect" means the unreasonable failure by a caregiver
to provide the care necessary to assure the physical safety or
health of an incapacitated adult; and
(6) "Serious bodily injury" means bodily injury which
creates a substantial risk of death, which causes serious or
prolonged disfigurement, prolonged impairment of health or
prolonged loss or impairment of the function of any bodily organ.
(b) A caregiver who neglects an incapacitated adult or who
knowingly permits another person to neglect an incapacitated
adult is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than $100 nor more than $500 or confined
in jail for not more than one year, or both fined and confined.
(c) A caregiver who abuses an incapacitated adult or who
knowingly permits another person to abuse an incapacitated adult
is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than $100 nor more than $500 or confined in jail
for not less than ninety days nor more than one year, or both
fined and confined.
(d) A caregiver of an incapacitated adult who intentionally
and maliciously abuses or neglects an incapacitated adult and
causes the incapacitated adult bodily injury is guilty of a
felony and, upon conviction thereof, shall be fined not less than
$100 nor more than $1,000 and imprisoned in a state correctional
facility not less than two years nor more than ten years.
(e) A caregiver of an incapacitated adult who intentionally
and maliciously abuses or neglects an incapacitated adult and
causes the incapacitated adult serious bodily injury is guilty of
a felony and, upon conviction thereof, shall be fined not less
than $1,000 nor more than $5,000 and imprisoned in a state
correctional facility not less than three years nor more than
fifteen years.
(f) Nothing in this section or in section twenty-nine-a of
this article shall be construed to mean an adult is abused or
neglected for the sole reason that his or her independent
decision is to rely upon treatment by spiritual means in
accordance with the tenets and practices of a recognized church
or religious denomination or organization in lieu of medical
treatment.
(g) Nothing in this section or in section twenty-nine-a of
this article shall be construed to mean an incapacitated adult is
abused or neglected if deprivation of life-sustaining treatment
or other act has been provided for by the West Virginia Health
Care Decisions Act, pursuant to article thirty, chapter sixteen
of this code.
§61-2-29a. Death of an incapacitated adult by a caregiver.
(a) A caregiver who intentionally and maliciously neglects
an incapacitated adult causing death is guilty of a felony and,
upon conviction thereof, shall be fined not more than $5000 and be imprisoned in a state correctional facility for a definite
term of not less than five nor more than fifteen years.
(b) A caregiver of an incapacitated adult who causes the
death of an incapacitated adult by knowingly allowing any other
person to intentionally or maliciously neglect the incapacitated
adult is guilty of a felony and, upon conviction thereof, shall
be fined not more than $5000 and be imprisoned in a state
correctional facility for a definite term of not less than five
nor more than fifteen years.
(c) A caregiver of an incapacitated adult who intentionally
and maliciously abuses an incapacitated adult which causes the
death of the incapacitated adult is guilty of a felony and, upon
conviction thereof, shall be imprisoned in a state correctional
facility for a definite term of not less than five nor more than
forty years.
(d) A caregiver of an incapacitated adult who causes the
death of an incapacitated adult by knowingly allowing any other
person to intentionally and maliciously abuse an incapacitated
adult is guilty of a felony and, upon conviction thereof, shall
be imprisoned in a state correctional facility for a definite
term of not less than five nor more than forty years.
(e) The provisions of this section do not apply to any
caregiver or health care provider who, without malice, fails or
refuses, or allows another person to, without malice, fail or refuse, to supply an incapacitated adult with necessary medical
care when the medical care conflicts with the tenets and
practices of a recognized religious denomination or order of
which the incapacitated adult is an adherent member.
§61-2-29b. Unlawful expenditure or dissipation of funds of an
incapacitated adult by as caregiver.
(a) A caregiver of an incapacitated adult who intentionally
misappropriates or misuses the funds or assets of an
incapacitated adult in the amount of less than $1,000 in value
for the caregiver's personal use, advantage or wrongful profit or
to the advantage or wrongful profit of another, is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than $1,000 or confined in jail no more than one year, or both
fined and confined.
(b) A caregiver of an incapacitated adult who intentionally
misappropriates or misuses the funds or assets of an
incapacitated adult in the amount of $1,000 or more in value for
the caregiver's personal use, advantage or wrongful profit or to
the advantage or wrongful profit of another, is guilty of a
felony and, upon conviction thereof, shall be fined not more than
$5,000 and imprisoned in a state correctional facility not less
than one nor more than ten years.
(c) A caregiver of an incapacitated adult, who by means of
intentional intimidation, infliction of bodily injury or threats of the infliction of bodily injury to an incapacitated adult,
willfully misappropriates or misuses for the caregiver's personal
use, advantage or wrongful profit or to the advantage or wrongful
profit of another is guilty of a felony and, upon conviction
thereof, shall be fined not more than $5000 and imprisoned in a
state correctional facility not less than three nor more than
fifteen years.