COMMITTEE SUBSTITUTE
FOR
H. B. 2788
(By Delegates Perry, Staggers, Williams, Ennis,
Talbott, Perdue, Frazier, Fragale, Miley and Caputo)
(Originating in the House Committee on the Judiciary)
[March 11, 2009]
A BILL to amend and reenact §61-2-29 of the Code of West
Virginia, 1931, as amended; and to amend said code by adding
thereto one new section, designated §61-2-29a, all relating
to protecting incapacitated adults; defining terms;
establishing and revising criminal penalties for neglect and
abuse causing injury, serious injury or death of an
incapacitated adult; and revising current penalties for
misappropriation or misuse of funds or assets of an
incapacitated adult.
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; and that said code be amended
by adding thereto a new section, designated §61-2-29a, all to
read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-29. Abuse or neglect of incapacitated adult.
(a)
The following words when As used in this section
have
the meaning ascribed, unless the context clearly indicates
otherwise: and section twenty-nine-a of this article, unless used
in a context that clearly requires a different meaning, the term:
(1) "Abuse" means the infliction or threat to inflict
physical pain or injury on an incapacitated adult or elder
person.
(2) "Bodily injury" means substantial physical pain, illness
or any impairment of physical condition;
(2)(3) "Caregiver" means an adult who has or shares actual
physical possession or care of an incapacitated adult or elder
person incapacitated adult on a full-time or temporary basis, regardless of whether such person has been designated as a
guardian or custodian of such adult the incapacitated 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 elder person;
(3) "Neglect" means: (i) The failure to provide the
necessities of life to an incapacitated adult or elder person or
(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 elder person.
(4) "Incapacitated adult" means any person who by reason of
advanced age, physical, mental or other infirmity is unable to
physically carry on the daily activities of life necessary to
sustaining life and reasonable health;
(5) "Elder" 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 elder person on a full-time or temporary basis,
regardless of whether the person has been granted custody of the
elder person by any contract, agreement or legal proceeding.
(5) "Neglect" means the unreasonable failure by a caregiver
to provide the care necessary to assure the physical safety or
health of a incapacitated adult; and
(6) "Serious bodily injury" means bodily injury which
creates a substantial risk of death, causes serious or prolonged
disfigurement, prolonged impairment of physical health or
prolonged loss or impairment of the function of any bodily organ.
(b) Any person, caregiver, guardian or custodian who
neglects an incapacitated adult or elder 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.
(b) Any caregiver who abuses or neglects an incapacitated
adult and causes bodily injury, is guilty of a misdemeanor and,
upon conviction thereof, shall be confined in jail
for not more
than one year, or
shall be fined not less than $100 nor more than
$1,000, or
both fined and confined
.
(c) Any person, caregiver, guardian or custodian who
intentionally and maliciously abuses or neglects an incapacitated
adult or elder person incapacitated adult and causes bodily
injury, is guilty of a felony and, upon conviction thereof, shall
in the discretion of the court, be confined in a state correctional facility for not less than two nor more than ten
years be imprisoned in a state correctional facility not less
than one nor more than three years, and be fined not more than
$1,000.
(d) Any caregiver who intentionally and maliciously abuses
or neglects an incapacitated adult causing serious bodily injury
is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for not less than two
nor more than fifteen years, and be fined not more than $5,000.
(e) Any caregiver who intentionally and maliciously abuses
or neglects an incapacitated adult causing death is guilty of a
felony and, upon conviction thereof, shall be imprisoned in a
state correctional facility for not less than five nor more than
fifteen years, and be fined not more than $5,000.
(d) If any person, caregiver, guardian or custodian of an
elder person or incapacitated adult, willfully misappropriates or
misuses the funds or assets of an incapacitated adult or elder
person for the person's, caregiver'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 $5,000 and
incarcerated in a correctional facility not less than two nor
more than ten years.
(e) If any person, caregiver, guardian or custodian of an
elder 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 elder
person for the person's, caregiver'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 $5,000 and
incarcerated in a correctional facility not less than five nor
more than fifteen years.
(f) Nothing in this article shall be construed to mean an
incapacitated 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.
(g) Nothing in this article shall be construed to mean an
incapacitated adult is abused or neglected
if deprivation of
life-sustaining treatment or other act has been provided for by
the West Virginia Health Care Decisions Act, pursuant to article
thirty, chapter sixteen of this code.
§61-2-29a. Unlawful expenditure or dissipation of funds of an
incapacitated adult by as caregiver.
(a) A caregiver of an incapacitated adult who intentionally
misappropriates or misuses the funds or assets of an
incapacitated adult in the amount of less than $1,000 in value
for the caregiver's personal use, advantage or wrongful profit or
to the advantage or wrongful profit of another, is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than $1,000 or confined in jail no more than one year, or both
fined and confined.
(b) A caregiver of an incapacitated adult who intentionally
misappropriates or misuses the funds or assets of an
incapacitated adult in the amount of $1,000 or more in value for
the caregiver's personal use, advantage or wrongful profit or to
the advantage or wrongful profit of another, is guilty of a
felony and, upon conviction thereof shall be imprisoned in a
correctional facility not less than one nor more than ten years
and, shall be fined not more than $5,000.
(c) A caregiver of an incapacitated adult, who by means of
intentional intimidation, coercion, infliction of bodily injury
or threats of the infliction of bodily injury to an incapacitated
adult, willfully misappropriates or misuses for the caregiver's
personal use, advantage or wrongful profit or to the advantage or
wrongful profit of another is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional
facility not less than five nor more than fifteen years, and
fined not more than $5,000.
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