WEST virginia legislature

2021 regular session

Introduced

House Bill 2671

By Delegates Rowan, Sypolt, Martin, Mandt, Queen, Hanna, Zukoff, Pinson, Rohrbach, Smith and J. Kelly

[Introduced February 23, 2021; Referred to the Committee on Senior, Children, and Family Issues then the Judiciary]

A BILL to amend and reenact §55-7J-1, §55-7J-4, §55-7J-5, and §55-7J-6 of the Code of West Virginia, 1931, as amended; and to amend and reenact  §61-2-29b of said code, all relating to financial exploitation of elderly persons, protected persons or incapacitated adults; updating terms; clarifying actions; including criminal penalties for violation or contempt of protective orders for victims of financial exploitation; and requiring notice of penalties in all injunctive or protective orders.

Be it enacted by the Legislature of West Virginia:

CHAPTER 55.  ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.

Article 7J. FINANCIAL EXPLOITATION OF AN ELDERLY PERSON, PROTECTED PERSON OR INCAPACITATED ADULT.

§55-7J-1. Action for financial exploitation of an elderly person, protected person or incapacitated adult; definitions.

(a) Any elderly person, protected person, or incapacitated adult against whom an act of financial exploitation has been committed may bring an action under this article against any person who has committed an act of financial exploitation against him or her, by filing a civil complaint for financial exploitation, a petition for a financial exploitation protective order, or both.

(b) For the purposes of this article:

(1) “Incapacitated adult” has the same meaning as prescribed under §61-2-29 of this code;

(2) “Elderly person” means a person who is 65 years or older;

(3) “Financial exploitation” or “financially exploit” means the intentional misappropriation or misuse of funds or assets or the diminishment of assets due to undue influence of an elderly person, protected person, or incapacitated adult, but may not apply to a transaction or disposition of funds or assets where the defendant made a good-faith effort to assist the elderly person, protected person, or incapacitated adult with the management of his or her money or other things of value; and

(4) “Protected person” means any person who is defined as a “protected person” in §44A-1-4 of this code and who is subject to the protections of §44A-1-1 et seq. or §44C-1-1 et seq. of this code.

(c) Any person who believes that an elderly person, protected person, or incapacitated adult is suffering financial exploitation due to the intentional misappropriation or misuse of funds or undue influence may bring an action for a protective order pursuant to this section in the magistrate court or circuit court in the county in West Virginia in which the elderly person, protected person, or incapacitated adult resides or the financial exploitation occurred: Provided, That an action for order granting a financial exploitation protective order relief brought in the magistrate court of the county of residence of the elderly person, protected person, or incapacitated adult believed to be the victim of financial exploitation to stay further diminution of the persons assets shall be temporary in nature.

(d) An action for a financial exploitation protective order brought under this section is commenced by the filing of a verified petition. Temporary relief may be granted without notice to the person alleged to be engaging in financial exploitation and without that person being present: Provided, That notice shall be provided to the person alleged to be engaging in financial exploitation as soon as practicable and that no final relief may be granted on the petition without a full, adversarial evidentiary hearing on the merits before the court.

(e) If a magistrate court grants the petition for a financial exploitation protective order and issues a temporary protective order, the magistrate court shall immediately transfer the matter to the circuit court of the county in which the petition was filed. Upon receipt of the notice of transfer from the magistrate court, the circuit court shall set the matter for a review hearing within 20 days. Any review hearing shall be a full, adversarial evidentiary hearing on the merits before the court. After a hearing, the circuit court may issue a permanent protective order containing any relief the circuit court determines necessary to protect the alleged victim if the court finds by a preponderance of the evidence that:

(1) The respondent has committed an act against the victim that constitutes financial exploitation; and

(2) There is reasonable cause to believe continued financial exploitation will occur unless relief is granted; or

(3) The respondent consents to entry of the permanent protective order.

(f) An order entered under this section shall state that a violation of the order may result in criminal prosecution under §61-2-29b of this code and state the penalties therefor.

§55-7J-4. Attorneys’ fees; court costs and burden of proof; statute of limitations.

(a) The court may award reasonable attorneys’ fees and costs to a person that brings an action under this sectio  article and prevails.

(b) The standard of proof in proving that a person committed financial exploitation in an action pursuant to this article is a preponderance of the evidence.

(c) An action under this article shall be brought within two years from the date of the violation or from the date of discovery, whichever is later in time. 

§55-7J-5. Action to freeze assets; burden of proof; options the court may exercise.

(a) An elderly person, protected person, or incapacitated adult may bring an action to enjoin the alleged commission of financial exploitation and may petition the court to freeze the assets of the person allegedly committing the financial exploitation in an amount equal to, but not greater than, the alleged value of lost property or assets for purposes of restoring to the victim the value of the lost property or assets. The burden of proof required to freeze the assets of a person allegedly committing financial exploitation shall be a preponderance of the evidence. Upon a finding that the elderly person, protected person, or incapacitated adult has been formally exploited, the court may:

(1) Grant injunctive relief;

(2) Order the violator to, place in escrow an amount of money equivalent to the value of the misappropriated assets for distribution to the aggrieved elderly person, protected person, or incapacitated adult;

(3) Order the violator to return to the elderly person, protected person, or incapacitated person any real or personal property which was misappropriated; or

(4) Provide for the appointment of a receiver, or

(5) Order any or all of the above.

(b) In an any action brought under §55-7J-1 of this code article, the court may void or limit the application of contracts or clauses resulting from the financial exploitation.

(c) In an any civil action brought under this article, upon the filing of the complaint or on the appearance of any defendant, claimant, or other party, or at any later time, the court may require the plaintiff, defendant, claimant, or other party or parties to post security, or additional security, in a sum the court directs to pay all costs, expenses, and disbursements that are awarded against that party or that the party may be directed to pay by any interlocutory order, by the final judgment or after appeal.

(d) An order entered under this section shall state that a violation of the order may result in criminal prosecution under §61-2-29b of this code and state the penalties therefor.

§55-7J-6.  Penalty for violation of injunction order; retention of jurisdiction.

Any person who violates the terms of any order issued under section five of this article shall be subject to proceeding for contempt of court. The court issuing the injunction may retain jurisdiction if, in its discretion, it determines that to do so is in the best interest of the elderly person, protected person or incapacitated adult. Whenever the court determines that an injunction issued under section five of this article has been violated, the court may award reasonable costs to the party asserting that a violation has occurred.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT

ARTICLE 2. Crimes against the person.

§61-2-29b. Financial exploitation of an elderly person, protected person or incapacitated adult; penalties; definitions.

(a) Any person who financially exploits an elderly person, protected person or an incapacitated adult in the amount of less than $1,000 is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail for not more than one year, or both fined and confined.

(b) Any person who financially exploits an elderly person, protected person or an incapacitated adult in the amount of $1,000 or more is guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000 and imprisoned in a state correctional facility not less than two nor more than twenty years.

(c) Any person convicted of a violation of this section shall, in addition to any other penalties at law, be subject to an order of restitution.

(d) In determining the value of the money, goods, property or services referred to in subsection (a) of this section, it shall be permissible to cumulate amounts or values where such money, goods, property or services were fraudulently obtained as part of a common scheme or plan.

(e) Financial institutions and their employees, as defined by section one, article two-a, chapter thirty-one-a of this code §31A-2A-1 and as permitted by subsection thirteen, section four of said article, others engaged in financially related activities, as defined by §31a-8c-1section one, of article eight-c, chapter thirty-one-a this code caregivers, relatives and other concerned persons are permitted to report suspected cases of financial exploitation to state or federal law-enforcement authorities, the county prosecuting attorney and to the Department of Health and Human Resources, Adult Protective Services Division or Medicaid Fraud Division, as appropriate. Public officers and employees are required to report suspected cases of financial exploitation to the appropriate entities as stated above. The requisite agencies shall investigate or cause the investigation of the allegations.

(f) When financial exploitation is suspected and to the extent permitted by federal law, financial institutions and their employees or other business entities required by federal law or regulation to file suspicious activity reports and currency transaction reports shall also be permitted to disclose suspicious activity reports or currency transaction reports to the prosecuting attorney of any county in which the transactions underlying the suspicious activity reports or currency transaction reports occurred.

(g) Any person or entity that in good faith reports a suspected case of financial exploitation pursuant to this section is immune from civil liability founded upon making that report.

(h) For the purposes of this section:

(1) “Incapacitated adult” means a person as defined by section twenty-nine of this article;

(2) “Elderly person” means a person who is 65 years or older;

(3) “Financial exploitation” or “financially exploit” means the intentional misappropriation or misuse of funds or assets of an elderly person, protected person or incapacitated adult, but shall not apply to a transaction or disposition of funds or assets where the accused made a good-faith effort to assist the elderly person, protected person or incapacitated adult with the management of his or her money or other things of value; and

(4) “Protected person” means any person who is defined as a “protected person” in section four, article one, chapter forty-four-a of this code §44A-1-4 and who is subject to the protections of chapter forty-four-a or forty-four-c of this code §44A-1-1 et seq or §44C-1-1 et seq. 

(i) Notwithstanding any provision of this code to the contrary, acting as guardian, conservator, trustee or attorney for or holding power of attorney for an elderly person, protected person or incapacitated adult shall not, standing alone, constitute a defense to a violation of subsection (a) of this section.

(j) Any person who willfully violates a material term of an order entered pursuant to §55-7J-5 §55-7J-1 et seq. of this code is guilty of a misdemeanor and, upon conviction thereof, shall:

(1) For the first offense, be fined not more than $1,000 or confined in jail not more than 90 days, or both fined and confined; and

(2) For a second or subsequent offense, be fined not more than $2,500 or confined in jail not more than one year, or both fined and confined.

(k)  Any order issued under §55-7J-1 et seq. of this code shall state that a violation of the order may result in (1) criminal prosecution and/or (2) incarceration and list the fines and penalties therefor: Provided, That any criminal charges for violation of an order issued under §55-7J-1 et seq. of this code must be brought in accordance with the West Virginia Rules of Criminal Procedure by criminal complaint, indictment and/or information properly obtained by the prosecuting authority of the county where the violation of such order has taken place and that any order for arrest of an individual allegedly in violation of any such order shall only be issued in accordance with the West Virginia Rules of Criminal Procedure or §§53-7-1 through 53-7-8 of this code, except that the court in its discretion, for good cause shown, may waive the plaintiff’s bond requirement set forth in §53-7-2 of this code.

 (l) A law-enforcement officer of this state, upon determining a valid financial exploitation protective order exists and that the order has been violated as set forth in §61-2-29b(k) of this code, shall enforce the order and arrest the individual violating the order with a warrant as set forth in §15-2-12 of this code or pursuant to judicial order issued under §53-7-1 of this code and take him or her into custody.

NOTE: The purpose of this bill is to update and coordinate the financial exploitation statute with applicable rules and other related statutes. The bill clarifies proceedings regarding civil complaints and petitions for financial exploitation protective orders; makes technical changes; includes potential criminal penalties for violation of the provisions of a financial exploitation protective order and requires notices of fines and penalties in all injunctive or protective orders. 

Strikethroughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.