H. B. 3170
(By Delegates Webster, Wooton, Shook, Fleischauer,
Miley, Manchin, Ellem, Frazier, Lane and Shott)
[Introduced March 17, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §44A-2-13 of the Code of West Virginia,
1931, as amended; and to amend and reenact §44A-3-11 of said
code, all relating to clarifying the filing and review of the
periodic accountings of conservators of incapacitated
protected persons.
Be it enacted by the Legislature of West Virginia:
That §44A-2-13 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §44A-3-11 of said code be
amended and reenacted, all to read as follows:
ARTICLE 2. PROCEDURE FOR APPOINTMENT.
§44A-2-13. Order of appointment; notice.
(a) An order appointing a guardian or conservator may only be
issued by the court upon the following:
(1) The guardian or conservator has subscribed to and filed an
oath promising to faithfully perform the duties of the office in accordance with all provisions of this chapter;
(2) Posting of any bond, if required; and
(3) The completion of mandatory education, as required under
the provisions of section ten, article one of this chapter, unless
the court enters an order stating that an individual does not
require educational training because he or she has completed the
mandatory education within the last three years.
(b) In addition to the findings of fact and conclusions of law
required in section nine of this article, the order shall include
the specific areas of protection or assistance granted in the case
of a guardian and the specific areas of management and assistance
granted in the case of a conservator.
The court may in its order
refer the periodic accountings of the conservator to a fiduciary
commissioner of the county in which the appointment is made.
(c) Within fourteen days following the entry of an order of
appointment, the guardian or conservator shall mail a copy of the
order of appointment, together with a brief statement in large
print of rights to seek an appeal for modification or termination,
to the protected person and to all individuals and entities given
notice of the petition.
ARTICLE 3. GUARDIANSHIP AND CONSERVATORSHIP ADMINISTRATION.
§44A-3-11. Filing of reports and accountings.
(a) Reports of guardians and accountings of conservators, as
described in this article shall be filed with the circuit clerk of the county in which appointed,
and also with the fiduciary
commissioner of the county if the court has made a referral in its
order, on a semi-annual basis during the first twelve months of the
guardian's or conservator's appointment and:
(1) On February 1 of each year
thereafter after that;
(2) When the court orders additional reports or accountings to
be filed;
(3) When the guardian or conservator resigns or is removed;
and
(4) When the appointment of the guardian or conservator is
terminated, except that in the case of a guardian, the court may
determine that there is no need for a report upon the termination;
and in the case of a conservator, no accounting is required if all
persons entitled to any of proceeds of the estate consent thereto.
(b) A guardian or conservator may elect to file a periodic
report or accounting on a calendar-year basis; however, in no event
may such a report or accounting cover a period of more than one
year. A calendar-year report or accounting shall be filed with the
circuit clerk,
and also with the fiduciary commissioner of the
county if the court has made a referral in its order, no later than
April 15 of the succeeding year.
(c) If the court has in its order made a referral to the
fiduciary commissioner of the county:
(1) The accounting shall be governed by and the fiduciary commissioner shall handle the same under the provisions of sections
ten, eleven, twelve, thirteen and fourteen, article four, chapter
forty-four of this code, except that all compensation and expenses
of the conservator shall be allowed and approved only by the
circuit court in accordance with the provisions of section
thirteen, article one of this chapter.
(2) The fiduciary commissioner may not publish any notice
concerning the filing of a proposed accounting, but shall serve a
copy of the proposed accounting of the conservator together with
the notice by United States mail on the protected person, all
individuals and entities given notice of the petition and any other
person or entity found to be interested in the affairs of the
protected person, all of whom have standing to file exceptions to
or falsify the accounting before the fiduciary commissioner.
(3) In the settlement of the accounting of a conservator, the
fiduciary commissioner is entitled to fees as are allowed for
fiduciary commissioners in the handling of accountings of a
decedent's estate, or as otherwise set by order of the circuit
court.
(4) Any party feeling aggrieved of a settlement or decision by
the fiduciary commissioner concerning the accounting may on motion
filed within four months of the settlement or decision appeal the
same to the circuit court.
(c) (d) Any person who knowingly violates the provisions of this section is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than $25 nor than more $100.
(d) (e) The State Auditor shall prescribe forms for reports
required to be filed pursuant to the provisions of this article.
NOTE: The purpose of this bill is to clarify the filing and
review of the periodic accountings of conservators of incapacitated
protected persons. Prior to the passage of the West Virginia
Guardianship and Conservatorship Act in 1994, committees and
guardians of incapacitated protected persons were appointed and
under the supervision of the county commission, and accountings
were handled by fiduciary commissioners in the same manner as
accountings for decedent's estates. The 1994 Act moved jurisdiction
to the circuit court but failed to specify how accountings were to
be handled.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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