H. B. 3170
(By Delegates Webster, Wooton, Shook, Fleischauer,
[Amended and again passed May 27, 2009, as a result of the
objections of the Governor; in effect ninety days from passage.]
Miley, Manchin, Ellem, Frazier, Lane and Shott)
AN ACT to amend and reenact §44A-1-7, §44A-1-9, §44A-1-10 and
§44A-1-14 of the Code of West Virginia, 1931, as amended; to
amend and reenact §44A-2-1, §44A-2-5, §44A-2-6, §44A-2-7,
§44A-2-12, §44A-2-13, §44A-2-13a, §44A-2-14 and §44A-2-15 of
said code; to amend and reenact §44A-3-11 of said code; and to
amend and reenact §44A-4-1 and §44A-4-5 of said code, all
relating to the West Virginia Guardianship and Conservatorship
Act; clarifying the filing and review of the periodic
accounting of conservators of incapacitated persons generally;
clarifying transfer of venue; clarifying the posting of bond
by conservators; authorizing the West Virginia Supreme Court
of Appeals to coordinate education program and update
materials and forms; expanding temporary protective orders to
include freezing accounts and producing records; increasing
filing fee for guardianship and conservatorship; transferring certain funds to the Supreme Court of Appeals; using
additional fee for review of reports and accountings by
fiduciary commissioner or other person; clarifying who can
access case files; clarifying who is responsible for proper
service; clarifying duties and fees of appointed counsel;
clarifying when limited conservatorship is needed; clarifying
orders of the court and time of entry; authorizing appointment
of fiduciary commissioner or other person to review reports;
creating a notice of appointment to be filed with the clerk of
the county commission; increasing temporary guardianships and
conservatorships to six months; clarifying procedure for
subsequent petitions; clarifying time frame for reports and
accountings; increasing penalties for failure to file reports
and accountings; reporting elder abuse; clarifying when
appointments terminate; clarifying duties of guardian and
conservator subsequent to death of protected person; and
making technical corrections.
Be it enacted by the Legislature of West Virginia:
That §44A-1-7, §44A-1-9, §44A-1-10 and §44A-1-14 of the Code
of West Virginia, 1931, as amended, be amended and reenacted; that
§44A-2-1, §44A-2-5, §44A-2-6, §44A-2-7, §44A-2-12, §44A-2-13,
§44A-2-13a, §44A-2-14 and §44A-2-15 of said code be amended and
reenacted; that §44A-3-11 of said code be amended and reenacted;
and that §44A-4-1 and §44A-4-5 of said code be amended and reenacted, all to read as follows:
CHAPTER 44A. WEST VIRGINIA GUARDIANSHIP AND CONSERVATORSHIP ACT.
ARTICLE 1. DEFINITIONS AND GENERAL PROVISIONS.
§44A-1-7. Transfer of venue following appointment.
(a) Following the appointment of a full or limited guardian or
conservator or committee, the court with jurisdiction over the
proceeding may order the transfer of jurisdiction to another
circuit court in this state or to an appropriate tribunal in
another state if it appears to the court that the interests of the
protected person will be best served by such transfer. Transfer of
jurisdiction to another state shall be in accordance with the
provisions of chapter forty-four-c of this code.
(b) Upon the transfer, the previously appointed guardian or
conservator shall report to the county of transfer that is assuming
jurisdiction Any changes to the appointments shall be made by the
court assuming jurisdiction.
§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 order the posting of a bond by a
conservator prior to 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 or mental
hygiene commissioner 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 may 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 entry of the order regarding bond.
(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
(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 or 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; written material; and forms.
(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 West Virginia Supreme Court of Appeals shall
coordinate the education program for guardians and conservators,
and shall update the program materials and requisite forms as
necessary. 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.
§44A-1-14. Temporary protective orders.
The court or mental hygiene commissioner may, at the request
of a petitioner or upon its own motion, issue temporary protective
orders freezing bank or investment accounts, ordering the
production of records and otherwise prohibiting or limiting the
expenditure, sale or other legal transfer of any assets of the
alleged protected person until a final order is entered revoking
the protective orders.
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. The
circuit clerk is not required to accept for filing a petition that
is not administratively complete.
(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 $110 payable upon
filing to the circuit clerk, $75 of which shall be retained by the
circuit clerk and $35 of which shall be remitted by the circuit
clerk to the special revenue account in the State Treasury created
in subsection (e) of this section.
(d) The person bringing the petition shall be responsible for
fees for filing 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 the 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 the fees and costs.
(e) 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
(f) The reports of guardians and inventory and accountings of
conservators required by this chapter shall be examined semi-
annually by the, fiduciary commissioner or other person appointed
by the court in accordance with section eleven, article three of
(g) The special revenue account known as the Enforcement of
Guardianship and Conservatorship Act Fund, previously administered
by the State Auditor, shall, on and after the amendment and
reenactment of this section, be administered by the West Virginia
Supreme Court of Appeals. All moneys previously collected for
deposit into the fund pursuant to this chapter and not expended in
accordance with this chapter shall be transferred to the West
Virginia Supreme Court of Appeals. All collections shall be
deposited and used for payment of fiduciary commissioner or other
person appointed by the court for review of the reports required by
section eleven, article three of this chapter and the education
program required by section ten, article one of this chapter.
Upon filing of a petition requesting appointment of a guardian or conservator, all pleadings, exhibits and other documents
contained in the court file shall be considered confidential and
not open for public inspection, either during the pendency of the
case or after the case is closed. The protected person, and his or
her attorney, may inspect or copy the file. Another party may file
a petition stating the reasons for inspecting or copying the file
and, upon good cause shown, the court or mental hygiene
commissioner may authorize the party, or his or her attorney, to
inspect and copy the file.
§44A-2-6. Notice of hearing.
(a) Upon the filing of the petition and evaluation report, the
court shall promptly issue a notice fixing the date, hour and
location for a hearing to take place within sixty days.
(b) The alleged protected person shall be personally served
with the notice, a copy of the petition and the evaluation report
not less than fourteen days before the hearing. The person may not
waive notice and a failure to properly notify the person shall be
(c) A copy of the notice, together with a copy of the
petition, shall be mailed by certified mail, return receipt
requested, by the petitioner, at least fourteen days before the
hearing to all individuals seven years of age or older and to all
entities whose names and post office addresses appear in the
petition. In the case of a missing person, a copy of the petition for the appointment of a conservator shall be mailed by certified
mail, return receipt requested, by the petitioner, at least
fourteen days before the hearing to the last known address of the
missing person. A copy of certified mail return receipts shall be
filed in the office of the circuit clerk on or before the date of
hearing. It is the responsibility of the petitioner to obtain
proper service and file the appropriate documentation with the
circuit clerk before the hearing.
(d) The notice shall include a brief statement in large print
of the purpose of the proceedings and shall inform the alleged
protected person of the right to appear at the hearing, the right
to an attorney and the right to object to the proposed appointment.
Additionally, the notice shall include the following statement in
POSSIBLE CONSEQUENCES OF A COURT FINDING
THAT YOU ARE INCAPACITATED
At the hearing you may lose many of your rights. A guardian
may be appointed to make personal decisions for you. A conservator
may be appointed to make decisions concerning your property and
finances. The appointment may affect control of how you spend your
money, how your property is managed and controlled, who makes your
medical decisions, where you live, whether you are allowed to vote
and other important rights.
(e) No person may be appointed a guardian or conservator without first receiving proper notice and having the opportunity to
be present at a hearing.
§44A-2-7. Appointment of counsel.
(a) The court shall appoint legal counsel for the alleged
protected person to make recommendations to the court that are in
the best interests of the alleged protected person. In appointing
legal counsel, the court shall consider any known preferences of
the alleged protected person, or an alleged protected person may
hire and pay for an attorney of his or her choice.
(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 that will act in the best interest of the
protected person is appointed; (4) if needed, assure the adequacy
of the bond; and (5) if needed, assure consideration of proper
(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, including obtaining medical and
financial records; (7) file appropriate motions, including
temporary protective orders; (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; (16) raise appropriate questions to all nominations for
guardian and conservator and the adequacy of the bond; (17) take
all steps to limit the scope of guardianship and conservatorship to
the individual's actual needs, and make all arguments to limit the
amount of the intervention; (18) ensure that the court considers
all issues as to the propriety of the individual's current or
intended housing or placement and that the limitations are set
forth in the order; (19) inform the client of the right to appeal,
and file an appeal to an order when appropriate; (20) 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 upon counsel being reappointed by the
court; and (21) otherwise zealously represent the interests and
desires of the client while also reporting to the court what
actions are in the best interests of the client.
(d) The protected person shall have the right to an
independent expert of his or her choice to perform an evaluation
and present evidence.
(e) A person appointed by the court as counsel for a
nonindigent alleged protected person shall inform the court or the
mental hygiene commissioner of his or her hourly rate at the onset
of the case and seek approval of his or her fee for the case by
submitting it to the court or the mental hygiene commissioner for
approval using forms provided by the West Virginia Supreme Court of
Appeals. The hourly rate and fee for the case must be reasonable
in light of the going rate for legal services, the complexity of
the matter and the amount of legal work involved. The court may
set the fee at the time of appointment.
§44A-2-12. Limited conservatorships.
A limited conservator may be appointed for an individual
deemed to be a protected person in need of a conservator within the
meaning of section four, article one of this chapter, but whose
property or financial affairs are so limited that there is only one
or more designated contexts for which a limitation of the individual's legal rights is warranted.
§44A-2-13. Order of appointment; notice; notice of
(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 and address other areas of
concern pursuant to the circumstances of the case.
(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.
(d) Within ten days following the entry of an order of
appointment, the circuit clerk shall mail a notice of appointment
for recordation in the office of the clerk of the county commission
to be recorded with the records of deeds and records of powers of
attorneys, and listed in the appropriate indexes under the name of
the protected person stating the case name and number, the name of
the protected person, and the names of the guardian and conservator
so that persons are put on notice of the existence of a
guardianship or conservatorship.
§44A-2-13a. Time of entry of orders.
The mental hygiene commissioner or the court shall prepare an
order within fourteen days of the hearing directing the appointees
to complete the mandatory education and post any required bond
within thirty days of the hearing. After the mandatory education
is completed and the bond posted, then the court shall enter a
final order on the petition within fourteen days.
§44A-2-14. Temporary guardians and conservators.
(a) The court may appoint a temporary guardian or temporary
conservator, or both, under this section upon a finding that an
immediate need exists, that adherence to the procedures otherwise
set forth in this chapter for the appointment of a guardian or
conservator may result in significant harm to a person or the estate, and that no other individual or entity appears to have
authority to act on behalf of the person, or that the individual or
entity with authority to act is unwilling, or has ineffectively or
improperly exercised the authority.
(b) A temporary guardian or temporary conservator shall have
only those powers and duties that are specifically set forth in the
order of appointment. The appointment of a temporary guardian or
temporary conservator shall expire within six months unless it is
terminated or extended for up to six months by the court or mental
hygiene commissioner for good cause shown following a hearing.
(c) An appointment of a temporary guardian or temporary
conservator shall be made upon timely and adequate notice to the
protected person after appointment or notice of appearance of
counsel and after all other protections have been afforded, in
accordance with due process of law, including any other conditions
as the court may order. The protected person may petition the
court for a substitution of a temporary guardian or temporary
conservator at any time.
(d) Within five days following the entry of an order of
appointment, a temporary guardian or temporary 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 person for whom the appointment
was made and to all individuals and entities that would be entitled to notice of hearing on a petition for appointment as set forth in
section six of this article.
§44A-2-15. Notice of hearing on petitions subsequent to the
appointment of a guardian or conservator.
(a) Except as otherwise provided herein or as ordered by the
court for good cause shown, notice of hearing on a petition for an
order subsequent to the appointment of a guardian or conservator
shall be personally served upon the protected person and mailed to
an appointed counsel or attorney of record, to those individuals
who would be entitled to notice of the filing of an original
petition to appoint, to any facility that is responsible for the
care and custody of the protected person, to the guardian or
conservator, if the guardian or conservator is not the petitioner,
and to other individuals or entities as the court may order.
(b) Unless otherwise ordered by the court, the notice shall be
personally served upon the protected person and mailed by the
petitioner by certified mail return receipt requested to other
parties entitled to notice at least fourteen days prior to the
hearing and shall be accompanied by a copy of the petition and
other relevant documents. A copy of the certified mail return
receipts shall be filed in the office of the circuit clerk on or
before the date of the hearing.
(c) The court or mental hygiene commissioner may conduct
hearings on subsequent petitions filed pursuant to this chapter.
ARTICLE 3. GUARDIANSHIP AND CONSERVATORSHIP ADMINISTRATION.
§44A-3-11. Filing of reports and accountings; misdemeanor for
failure to file; reporting elder abuse.
(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 and also with the fiduciary
commissioner of the county or other person if the court has made a
referral in its order:
(1) Within six months of being appointed;
(2) By December 31 of each year thereafter;
(3) When the court orders additional reports or accountings to
(4) When the guardian or conservator resigns or is removed;
(5) 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 proceeds of the estate consent thereto.
(b) The circuit clerk shall notify the court if the required
reports are not filed or are administratively incomplete. The
fiduciary commissioner, or other person appointed by the court or
mental hygiene commissioner, shall review the reports and
accountings semi-annually, and may request additional information from the guardian or conservator. If the reports or accountings
are not filed, or if there are any questions or discrepancies in
the reports or accountings, the person reviewing the report shall
notify the court or mental hygiene commissioner for further
investigation or action of the court, including but not limited to,
a court order requesting copies of bank or investment records,
appointing counsel to investigate the matter or setting a hearing
on the matter.
(c) If the court has in its order made a referral to the
fiduciary commissioner of the county:
(1) The accounting shall be governed by and the fiduciary
commissioner shall handle the same under the provisions of sections
ten, eleven, twelve, thirteen and fourteen, article four, chapter
forty-four of this code, except that all compensation and expenses
of the conservator shall be allowed and approved only by the
circuit court in accordance with the provisions of section
thirteen, article one of this chapter.
(2) The fiduciary commissioner may not publish any notice
concerning the filing of a proposed accounting, but shall serve a
copy of the proposed accounting of the conservator together with
the notice by United States mail on the protected person, all
individuals and entities given notice of the petition and any other
person or entity found to be interested in the affairs of the
protected person, all of whom have standing to file exceptions to or falsify the accounting before the fiduciary commissioner.
(3) In the settlement of the accounting of a conservator, the
fiduciary commissioner is entitled to fees as are allowed for
fiduciary commissioners in the handling of accountings of a
decedent's estate, or as otherwise set by order of the circuit
(4) If the court or mental hygiene commissioner appoints a
person other than the fiduciary commissioner to review the reports,
such person shall report to the court as required by this article.
The court shall establish a fee for reviewing a report which shall
be paid by the Supreme Court of Appeals from the Enforcement of
Guardianship and Conservatorship Act Fund.
(5) Any party feeling aggrieved of a settlement or decision by
the fiduciary commissioner concerning the accounting may on motion
filed within four months of the settlement or decision appeal the
same to the circuit court.
(d) Any guardian or conservator who knowingly violates the
provisions of this section is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than $100 nor more than
(e) The parties, attorneys or mental hygiene commissioner
shall report violations of this section, or any other alleged elder
abuse violations, including criminal elder abuse pursuant to
section twenty-nine, article two, chapter sixty-one of this code, to the Department of Health and Human Resources or county
prosecutor for further investigation and action.
(f) The West Virginia Supreme Court of Appeals shall prescribe
forms for reports, accountings and inventories required to be filed
pursuant to the provisions of this article.
ARTICLE 4. TERMINATION, REVOCATION AND MODIFICATION OF
§44A-4-1. Termination of appointment of guardian or conservator.
(a) The appointment of a guardian or conservator shall
terminate upon the death, resignation or removal of the guardian or
(b) The appointment further terminates upon the death of the
protected person. The guardian or conservator shall file the
certified death certificate of the protected person with the
circuit clerk with a final report or accounting.
(c) A guardianship or conservatorship shall terminate whenever
jurisdiction is transferred to another state or if ordered by the
court following a hearing on the petition of any interested person.
(d) In the case of a missing person, a conservatorship shall
terminate when the missing person is located or when the person's
death is established by the production of a certified death
certificate, or the person is presumed dead pursuant to the
provisions of article nine, chapter forty-four of this code.
(e) The court or the mental hygiene commissioner shall prepare a termination order dismissing the guardianship or conservatorship
case and discharging any bond posted by the guardian or
(f) A termination of an appointment does not affect the
liability of a guardian or conservator for prior acts or the
responsibility of a conservator to account for the estate of the
§44A-4-5. Duty of guardian or conservator subsequent to death of
In the absence of an advanced directive, such as a will,
living will or power of attorney, or preneed burial or cremation
contract, after the death of the protected person, a guardian or a
conservator, if there is no guardian, shall continue to have
authority to make decisions regarding the body of the deceased
protected person for the purposes of authorizing an autopsy and
making funeral arrangements. The guardian's or conservator's
authority shall continue until an executor or executrix or an
administrator or administratrix has been appointed.