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Introduced Version Senate Bill 230 History

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Senate Bill No. 230

(By Senators Weeks, Yoder, Bailey, Dempsey, Lanham,

Barnes and Jenkins)

____________

[Introduced February 18, 2005; referred to the Committee

on the Judiciary.]

____________



A BILL to amend and reenact §61-2-29 of the Code of West Virginia, 1931, as amended, relating to creating a new crime of "negligent homicide by a caregiver"; and establishing a penalty and statute of limitations for such crime.

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 to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-29. Abuse or neglect of incapacitated adult; abuse or neglect of elder person; misappropriation or misuse of assets or funds of elder person; misappropriation or misuse of assets or funds of elder person through deception, intimidation, coercion, bodily injury or threats of bodily injury; penalties.

(a) The following words when used in this section have the meaning ascribed, unless the context clearly indicates otherwise:
(1) "Abuse" means the infliction or threat to inflict physical pain or injury on an incapacitated adult or elder person;
(2) "Care giver" means an adult who has or shares actual physical possession or care of an incapacitated adult or elder person on a full-time or temporary basis, regardless of whether such person has been designated as a guardian of such 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 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.
(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.
(c) Any person, caregiver, guardian or custodian who intentionally abuses or neglects an incapacitated adult or elder person 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.
(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 five thousand dollars 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 five thousand dollars and incarcerated in a correctional facility not less than five nor more than fifteen years.
(f) Any caregiver, guardian or custodian who neglects an incapacitated adult or elder person resulting in the death of such adult, or who knowingly permits another person to neglect such adult resulting in the death of such adult, or who in the capacity of a caregiver, guardian or custodian acts in an unlawful manner resulting in the death of such adult, but without the intention of killing such adult, or who in the capacity of a caregiver, guardian, or custodian acts in a reckless or wanton manner calculated to cause injury which does result in death of such adult is guilty of negligent homicide by a caregiver. Negligent homicide by a caregiver shall be a misdemeanor and, upon conviction thereof, shall be fined not less than five hundred dollars nor more than fifteen hundred dollars, or imprisoned in jail for not less than ninety days nor more than one year, or both fined and imprisoned. Notwithstanding other provisions of this code, the statute of limitations for negligent homicide by a caregiver is five years.
(f) (g) Nothing in this article shall be construed to mean an 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.


NOTE: The purpose of this bill is to establish a new crime of negligent homicide by a caregiver, provide penalties for such crime and establish a statute of limitations for such crime.

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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