H. B. 2151
(By Mr. Speaker, Mr. Chambers and Delegates
Richards and Rowe)
[Introduced February 17, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections one and two, 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 to appoint a
committee for an incompetent and to supervise his or her
maintenance rather than county commissions.
Be it enacted by the Legislature of West Virginia:
That sections one and two, 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 committee for a person found to beincompetent. 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 committee 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 subpoena witnesses, to be confronted 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 thecounty 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. 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 circuit court 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 whose
incompetency 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 fromfunds 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 committee 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. If
the 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 shouldnot 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 answer
questions under cross-examination.
(f) The extent of the committee's authority shall be
specified in the order of the county commission circuit court.
No authority of a committee 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 committee 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.
(h) The individual or any person may apply to the county
commission circuit court in the manner provided by subsection (b)
of this section for termination of his or her committee 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
committee, shall take from the appointee a bond in such penalty
and with such surety as it shall deem sufficient, with condition
that the person so appointed will well and truly account for and
pay over to the person entitled thereto all property and moneyswhich 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 committee shall be entitled to reasonable
compensation for all services performed on behalf of the
individual. If any person so appointed as a committee 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 committee, 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 committee
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.
NOTE: The purpose of this bill is to transfer to the
circuit court jurisdiction over proceedings to determine
incompetency and to appoint a committee for an incompetent.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.