Senate Bill No. 664
(By Senator Palumbo)
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[Introduced February 22, 2010; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact
§44A-3-1 and §44A-3-2
of the Code of
West Virginia, 1931, as amended, all relating to the duties
and reports of the guardian; requiring the guardian to act as
a fiduciary in the best interests of the protected person;
requiring the guardian to address social activities of
protected person; permitting petition of interested party;
permitting court or Mental Hygiene Commissioner to order
guardian to take appropriate actions; and requiring guardian
to report on social activities of protected person.
Be it enacted by the Legislature of West Virginia:
That
§44A-3-1 and §44A-3-2
of the Code of West Virginia, 1931,
as amended, be amended, all to read as follows:
ARTICLE 3. GUARDIANSHIP AND CONSERVATORSHIP ADMINISTRATION.
§44A-3-1. Duties of guardian of protected person.
A (a) The guardian of a protected person shall act in a
fiduciary capacity and is be responsible for obtaining provision
for and making decisions with respect to the protected person's
support, care, health, habilitation, education, therapeutic
treatment, social activities and visits with friends and family,
and, if not inconsistent with an order of commitment or custody, to
determine the protected person's residence.
(b) A guardian shall maintain sufficient contact of not less
than once very six months with the protected person to know of the
protected person's capabilities, limitations, needs, and
opportunities. and such contact shall not be less frequent than one
visit every six months.
(c) A guardian shall be required to seek prior court
authorization to change the protected person's residence to another
state, to terminate or consent to a termination of the protected
person's parental rights, to initiate a change in the protected
person's marital status, to deviate from a protected person's
living will or medical power of attorney, or to revoke or amend a
durable power of attorney executed by the protected person.
(d) A guardian shall exercise authority only to the extent
necessitated by the protected person's limitations, and, where
feasible, shall encourage the protected person to participate in
decisions, to act on his or her own behalf, and to develop or regain the capacity to manage personal affairs.
(e) A guardian shall, to the extent known, consider the
express desires and personal values of the protected person when
making decisions, and shall otherwise act in the protected person's
best interests and exercise reasonable care, diligence, and
prudence.
(f) Upon the petition of an interested party or upon its own
motion, the court or Mental Hygiene Commissioner may order the
guardian to take appropriate action to address the needs and best
interests of the protected person as required by this section.
§44A-3-2. Reports by guardian of protected person.
(a) Any guardian appointed pursuant to the provisions of this
chapter shall file periodic reports, in accordance with section
eleven of this article including:
(a) The guardian's report shall include:
(1) A description of the current mental, physical, and social
condition of the protected person;
(2) A description of the protected person's living
arrangements during the reported period;
(3) The medical, educational, vocational, and other
professional services provided to the protected person and the
guardian's opinion as to the adequacy of the protected person's
care;
(4) A summary of the guardian's visits with the protected
person, the protected person's visits with friends and family, and
the social activities on behalf of the protected person;
(5) A statement of whether the guardian agrees with the
current treatment or habilitation plan;
(6) A recommendation as to the need for continued guardianship
and any recommended changes in the scope of the guardianship;
(7) Any other information requested by the court or useful in
the opinion of the guardian;
(8) The compensation requested and the reasonable and
necessary expenses incurred by the guardian; and
(9) A verification signed by the guardian stating that all of
the information contained in the report is true and correct to the
best of his or her knowledge.
(b) The court may order the guardian to attend a hearing on
the report by motion of the court or Mental Hygiene Commissioner,
or upon the petition of any interested person. A report of the
guardian may be incorporated into and made a part of the accounting
of the conservator.
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(NOTE: The purpose of this bill is to more specifically
address the social needs of the protected person with regard to
visits with friends and family. It requires the guardian to
arrange for, and report on, social activities and visits with
friends or family, and allows the court or Mental Hygiene Commissioner to intervene and order otherwise if the guardian's
actions are not within the best interests of the protected person.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
)