Engrossed Committee Substitute
House Bill 2151 History
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ENGROSSED
COMMITTEE SUBSTITUTE
FOR
H. B. 2151
(By Mr. Speaker, Mr. Chambers, and Delegates Richards and
Rowe)
(Originating in the House Committee on the Judiciary)
[March 2, 1993]
A BILL to amend and reenact sections one, two, three, four and
five, article eleven, chapter twenty-seven of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, relating to assumption by the circuit court of
jurisdiction over proceedings to determine incompetency and
the appointment of guardians for incompetents; establishing
a fiduciary relationship between the guardian and the
incompetent; providing alleged incompetents with the right
to retain an attorney; providing for the appointment and
compensation of guardian ad litem; provisions for appeal to
the supreme court of appeals; appraisement of estate; powers
and duties of guardian; authority of guardian to mortgage,
lease or sell realty.
Be it enacted by the Legislature of West Virginia:
That sections one, two, three, four and five, article
eleven, chapter twenty-seven of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted to read as follows:
ARTICLE 11. COMMITTEE; DISPOSITION OF PROPERTY.
§27-11-1. Appointment of committees; hearing; appointment of
guardian ad litem; certification of incompetency;
appeal; habeas corpus.
(a) The county commission circuit court of a person's
residence may appoint a guardian for a person found to be
incompetent. Any finding of incompetency under this article
shall be made separately and at a different proceeding from any
finding of mental illness, mental retardation or addiction under
article four or five of this chapter.
(b) Proceedings for the appointment of a guardian for an
alleged incompetent may be commenced by the filing of a verified
petition of a person setting forth the facts showing the
incompetency of an individual with the county commission circuit
court. Upon receipt of a petition, the clerk of the county
commission circuit court shall give notice of the hearing thereon
to the individual and to the individual's spouse, or if the
individual does not have a spouse, to the individual's adult next
of kin:
Provided,
That the aforesaid clerk is not required to
give notice of the hearing to the spouse or adult next of kin if
he or she is the petitioner:
Provided, however,
That the
individual shall be served with notice of the hearing by
delivering to him or her, in person, written notice with a true
copy of the verified petition. The notice shall be served upon
the individual alleged to be incompetent at least ten days before
the time of the hearing.
An individual alleged to be incompetent shall be accorded
the right to retain an attorney, to subpoena witnesses, to beconfronted with witnesses and the right to cross-examine
witnesses which may be offered against him or her, and the county
commission circuit court on or before the commencement of the
hearing shall appoint a competent attorney practicing before the
bar of the circuit court of the county wherein the hearing is to
be held as guardian ad litem for the purpose of representing the
interest of the individual throughout the proceedings under this
section. The guardian ad litem shall be appointed and
compensated in accordance with the provisions of section ten,
article four, chapter fifty-six of this code. Notwithstanding
any requirement hereof to the contrary, the hearing may proceed
without the presence of the individual alleged to be incompetent
if (1) proper notice has been served upon the individual alleged
to be incompetent as required herein, and (2) a duly licensed
physician certifies in writing and upon affidavit that he or she
has examined the individual and that the individual is physically
unable to appear at the hearing or that an appearance would
likely impair or endanger the health of the individual, or (3)
the individual refuses to appear, and (4) upon the specific
written findings by the commission court of facts as will justify
a hearing without the presence of the individual as provided in
this subsection.
(c) A record shall be made of all proceedings either by the
court reporter for the circuit court of that county or some other
person employed by the county commission for the purpose. A
transcript shall be made available to the individual or his or
her counsel within thirty days if requested for purposes of
appeal. In any case wherein an indigent person whoseincompetency is alleged pursuant to the provisions of this
section seeks an appeal, the circuit court shall by order entered
of record authorize and direct the person making the record of
the proceeding to furnish a transcript of the hearing, and the
cost shall be paid by the county commission circuit court from
funds appropriated for this purpose.
(d) Upon completion of the hearing and upon the evidence
presented therein, the county commission circuit court may find
that (1) the individual is unable to manage his or her business
affairs, or (2) the individual is unable to care for his or her
physical well-being, or (3) both, and is therefore incompetent,
or (4) that the individual is competent. Evidence of mere poor
judgment or of different life style shall not be competent
evidence upon which to base a finding of incompetency.
"Unable to manage one's business affairs" means the
inability to know and appreciate the nature and effect of his or
her business transactions, notwithstanding the fact that he or
she may display poor judgment.
"Unable to care for one's physical well-being" means the
substantial risk of physical harm to himself or herself as
evidenced by conduct demonstrating that he or she is dangerous to
himself or herself, notwithstanding the fact that he or she may
display poor judgment.
(e) If the county commission circuit court finds the person
to be competent, the proceedings shall be dismissed. No
appointment of a guardian shall be made on evidence which is
uncorroborated by the testimony of a medical expert or by a
certified statement upon affidavit as hereinafter provided. Ifthe individual refuses to submit to an examination by a
physician, the circuit court may upon petition issue a rule
against the individual to show cause why the individual should
not submit to an examination. A copy of the petition shall
accompany service of the rule and such rule shall be returnable
at a time to be fixed by the court. Any physician duly licensed
to practice medicine in this state or any state contiguous to
this state who is currently treating the individual alleged to be
incompetent may file with the county commission circuit court his
or her certified statement upon affidavit stating that he or she
is currently treating the individual and setting forth his or her
opinion of the individual's ability to manage his or her business
affairs and care for his or her physical well-being, and stating
in detail the grounds for the opinion. The statement may be
considered by the county commission circuit court as evidence in
the case:
Provided,
That the circuit court upon the petition of
the attorney or guardian ad litem for the alleged incompetent
shall issue a subpoena for the treating physician to appear as a
witness at the proceeding:
Provided, however,
That a certified
statement upon affidavit is not admissible as evidence of
incompetency under this section where:
(1) The guardian ad litem or attorney for the individual
makes a timely request of the commission court for the
opportunity to cross-examine the treating physician who filed the
certified statement upon affidavit; and
(2) The commission court requests such treating physician to
appear for cross-examination; and
(3) Such treating physician fails to appear and answerquestions under cross-examination.
(f) The extent of the guardian's authority shall be
specified in the order of the county commission circuit court.
No authority of a guardian shall extend beyond what is necessary
for the protection of the individual. A finding of inability to
care for one's physical well-being shall entitle the guardian to
custody of the individual, except when the individual is under a
commitment order to a mental health facility, but only to the
extent as is necessary for the protection of the individual.
(g) An individual found incompetent pursuant to subsection
(d) of this section shall have the right to an appeal and hearing
thereon in the circuit court of the county. The judge shall hear
the matter on appeal as provided in article three, chapter fifty-
eight of this code or order a hearing de novo on the matter to
the supreme court of appeals as provided for under section one,
article five, chapter fifty-eight of this code.
(h) The individual found incompetent or any person acting in
the individual's behalf may apply to the county commission
circuit court in the manner provided by subsection (b) of this
section for termination of his or her guardian at any time and
appeal from a determination thereon in the manner provided by
this section, or in the alternative, the individual may seek such
termination by habeas corpus.
§27-11-2. Bond; refusal to act or failure to qualify;
appointment of another; committal to sheriff.
The county circuit court, when making an appointment of such
guardian, shall take from the appointee a bond in such penalty
and with such surety as it shall deem sufficient, with conditionthat the person so appointed will well and truly account for and
pay over to the person entitled thereto all property and moneys
which may come into his or her hands by virtue of such
appointment and with such other conditions as the county circuit
court may require. The guardian shall be entitled to reasonable
compensation for all services performed on behalf of the
individual. If any person so appointed as a guardian refuses the
trust or shall fail for ten days succeeding his or her
appointment to give bond, as aforesaid, the county circuit court
on the motion of any party interested, or at its own instance,
may appoint some other person as guardian, taking from him or her
bond as above provided, or may commit the estate of the person to
the sheriff of the county, who shall act as guardian without
giving any bond as such and he or she and the sureties on his or
her official bond shall be liable for the faithful performance of
the trust.
§27-11-3. Appraisement of estate.
The county commission, whenever any committee guardian is
appointed for a person unable to manage his business affairs,
shall appoint appraisers and cause to be made, returned and
recorded, an appraisement of the property, both real and
personal, of any such person in the same manner, to the same
extent, within the same time, and subject to the same regulations
and conditions as required by law for the estate of a deceased
person.
§27-11-4. Powers and duties of committee guardian generally.
The committee guardian appointed for any such person unable
to manage his business affairs shall take possession of hisestate, and may sue or be sued in respect thereto, and for the
recovery of debts due to and from such person. The committee
guardian shall preserve such estate and manage it to the best
advantage, shall apply the personal estate, or so much thereof as
may be necessary to the payment of the debts of such person, and
the rents and profits of the residue of his estate, real and
personal, and the residue of the personal estate, or so much as
may be necessary, to the maintenance of such person, and of his
family, if any, and shall make due accounting as required by law,
and surrender the estate, or as much as he may be accountable
for, to such person in case he shall be deemed competent, or, in
case of his death, without having been restored to competence,
the real estate to his heirs or devisees, and the personal estate
to his executors or administrators.
§27-11-5. Authority of committee guardian to mortgage, lease or
sell realty.
If the personal estate of such person be insufficient for
the discharge of his debts, or if such estate or the residue
thereof after payment of the debts, and the rents and profits of
his real estate, be insufficient for his maintenance and that of
his family, if any, the committee guardian of such person may
proceed, as provided in article one, chapter thirty-seven of this
code, to obtain authority to mortgage, lease or sell so much of
the real estate of such person as may be necessary for the
purposes aforesaid, or any of them, setting forth in the petition
the particulars and the amount of the estate, real and personal,
the application which may have been made of any personal estate,
and an account of the debts and demands existing against theestate.
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