ENROLLED
Senate Bill No. 664
(By Senator Palumbo)
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[Passed March 13, 2010; in effect ninety days from passage.]
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AN ACT
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 of a protected person; providing
that the guardian owes a fiduciary duty to act in the best
interests of the protected person; requiring the guardian to
make provision for social interactions between the protected
person and the protected person's friends and family;
requiring the periodic guardian reports to include a summary
of the guardian's efforts and activities on behalf of the
protected person; and including the guardian's efforts to
facilitate the protected persons involvement in social
activities and social interaction with friends and family as
a part of the guardian's periodic reports.
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) The guardian of a protected person owes a fiduciary duty
to the protected person and is responsible for obtaining provision
for and making decisions with respect to the protected person's
support, care, health, habilitation, education, therapeutic
treatment, social interactions 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.
(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:
(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 guardian's social interactions with the protected
persons, the guardian's efforts and activities on behalf of the
protected person, including
the guardian's efforts facilitating on
behalf of the protected person social interactions with friends and
families, and the guardian's efforts facilitating the protected
person engagement in social activities;
(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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