H. B. 4433
(By Mr. Speaker, Mr. Kiss, and Delegates Pino,
Webb, Stemple, Schadler, Craig and Amores)
[Introduced
February 12, 2004
; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §61-2-29 of the code of West Virginia,
1931, as amended, relating to abuse or neglect of an
incapacitated adult; adding the crimes of abuse and neglect of
an elderly person age sixty-five years or older and the crime
of misuse and misappropriation of the funds or assets of an
elderly person; and creating the crime of misuse or
misappropriation of the funds or assets of an elderly person
through deception, intimidation, coercion, the infliction of
bodily injury or the threat of bodily injury.
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 to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-29. Abuse or neglect of incapacitated adult; abuse or
neglect of elderly person; misappropriation or
misuse of assets or funds of elderly person;
misappropriation or misuse of assets or funds of
elderly person through deception, intimidation, coercion, bodily injury or threats of bodily injury;
penalties.
(a) The following words when used in this section have the
meaning ascribed, unless the context clearly indicates otherwise:
(1) "Abuse" means the infliction or threat to inflict physical
pain or injury on an incapacitated adult or elderly person;
(2) "Caregiver" means an adult who has or shares actual
physical possession or care of an incapacitated adult or elderly
person on a full-time or temporary basis, regardless of whether
such person has been designated as a guardian of such adult by any
contract, agreement or legal proceeding. Caregiver includes health
care providers, family members, and any person who otherwise
voluntarily accepts a supervisory role towards an incapacitated
adult or elderly person;
(3) "Neglect" means: (i) The failure to provide the
necessities of life to an incapacitated adult or elderly person;
and (ii) the unlawful expenditure or willful dissipation of the
funds or other assets owned or paid to or for the benefit of an
incapacitated adult or elderly person; and
(4) "Incapacitated adult" means any person who by reason of
physical, mental or other infirmity is unable to physically carry
on the daily activities of life necessary to sustaining life and
reasonable health;
(5) "Elderly" means a person age sixty-five years or older;
(6) "Bodily injury" means substantial physical pain, illness
or any impairment of physical condition; and
(7) "Custodian" means a person over the age of eighteen years
who has or shares actual physical possession of care and custody of
an elderly person on a full-time or temporary basis, regardless of
whether the person has been granted custody of the elderly person
by any contract, agreement or legal proceeding.
(b) Any caregiver, guardian or custodian who neglects an
incapacitated adult or elderly person, or who knowingly permits
another person to neglect said adult, is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than five
hundred dollars nor more than fifteen hundred dollars, or
imprisoned in the county or regional jail for not less than ninety
days nor more than one year, or both fined and imprisoned.
(c) Any caregiver who intentionally abuses or neglects an
incapacitated adult or elderly person is guilty of a felony and,
upon conviction thereof, shall, in the discretion of the court, be
confined in the penitentiary a state correctional facility for not
less than two nor more than ten years. or be confined in the
county jail for not more than twelve months and fined not more than
fifteen hundred dollars
(d) If any person, guardian or custodian physically abuses an
elderly person and the abuse causes the elderly person bodily
injury, the person, guardian or custodian is guilty of a felony
and, upon conviction thereof, shall be fined not less than one
hundred nor more than one thousand dollars and incarcerated in a
correctional facility for not less than one nor more than three
years.
(e) If any person, guardian or custodian physically abuses an
elderly person and the abuse creates a substantial risk of serious
bodily injury or death to the elderly person, the person, guardian
or custodian is guilty of a felony and, upon conviction thereof,
shall be fined not less than one thousand nor more than three
thousand dollars and incarcerated in a correctional facility not
less than two nor more than five years.
(f) If any person, guardian or custodian of an elderly person
or incapacitated adult, willfully misappropriates, or misuses the
funds or assets of an incapacitated adult or elderly person for the
person's, guardian's, or custodian's personal use, advantage or
wrongful profit, or to the advantage or wrongful profit of another,
he or she is guilty of a felony and, upon conviction thereof, shall
be fined not more than five thousand dollars and incarcerated in a
correctional facility not less than five nor more than ten years.
(g) If any person, guardian or custodian of an elderly person
or incapacitated adult, by means of deception, intimidation,
coercion, infliction of bodily injury or threats of the infliction
of bodily injury, willfully misappropriates, or misuses the funds
or assets of an incapacitated adult or elderly person for the
person's, guardian's, or custodian's personal use, advantage or
wrongful profit or to the advantage or wrongful profit of another,
he or she is guilty of a felony and, upon conviction thereof, shall
be fined not more than five thousand dollars and incarcerated in a
correctional facility not less than five nor more than ten years.
(d) (h) Nothing in 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.
NOTE: The purpose of this bill is to create the crime of
abuse and neglect of an elderly person and the crime of misuse or
misappropriation of the funds or assets of an elderly person and
setting penalties therefor.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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