H. B. 2051
(By Delegates Amores, Hutchins, Linch, Manuel, Faircloth and Smirl )
[Introduced February 13, 1997; referred to the Committee on the Judiciary.]
A BILL to amend and reenact sections eight and nine, article one,
chapter forty-four-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to further
amend said article by adding thereto a new section,
designated section fourteen, and to amend and reenact
section two, article two of said chapter; all relating
generally to the guardianship and conservator appointment
process; altering guardianship and conservatorship
appointment eligibility for sheriffs and the department of
health and human resources; providing that bond is not
required upon appointment of sheriffs and the department of
health and humans services; requiring proof of bonding to be
submitted to the appointing court; modifying appointment
petition; and allowing the appointing court authority to
protect the alleged protected persons assets during the
petition process.
Be it enacted by the Legislature of West Virginia:
That sections eight and nine, article one, chapter forty-four-a of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended; that said article be further
amended by adding thereto a new section, designated section
fourteen, and to amend section two, article two of said chapter,
all to read as follows:
§44A-1-8. Persons and entities qualified to serve as guardian
or conservator.
(a) Any adult individual may be appointed to serve as a
guardian, a conservator, or both, upon determination by the court
that the individual is capable of providing an active and
suitable program of guardianship or conservatorship for the
protected person:
Provided,
That such individual is not employed
by or affiliated with any public agency, entity or facility which
is providing substantial services or financial assistance to the
protected person.
(b) Any nonprofit corporation chartered in this state and
licensed as set forth in subsection (c) of this section or a
public agency that is not a provider of health care services to
the protected person may be appointed to serve as a guardian, a
conservator, or both:
Provided,
That such entity is capable of
providing an active and suitable program of guardianship or
conservatorship for the protected person and is not otherwise
providing substantial services or financial assistance to the
protected person.
(c) A nonprofit corporation chartered in this state may be
appointed to serve as a guardian or conservator or as a limited
or temporary guardian or conservator for a protected person if it is licensed to do so by the secretary of health and human
resources. The secretary shall propose legislative rules, for
promulgation in accordance with the provisions of chapter twenty- nine-a of this code, for the licensure of such nonprofit
corporations and shall provide for the review of such licenses.
The rules shall, at a minimum, establish standards to assure that
any corporation licensed for such guardianship or
conservatorship:
(1) Has sufficient fiscal and administrative resources to
perform the fiduciary duties and make the reports and accountings
required by this chapter;
(2) Will respect and maintain the dignity and privacy of the
protected person;
(3) Will protect and advocate the legal human rights of the
protected person;
(4) Will assure that the protected person is receiving
appropriate educational, vocational, residential and medical
services in the setting least restrictive of the individual's
personal liberty;
(5) Will encourage the protected person to participate to
the maximum extent of his or her abilities in all decisions
affecting him or her and to act in his or her own behalf on all
matters in which he or she is able to do so;
(6) Does not provide educational vocational, residential or
medical services to the protected person; and
(7) Has written provisions in effect for the distribution of
assets and for the appointment of temporary guardians and conservators for any protected persons it serves in the event the
corporation ceases to be licensed by the department of health and
human resources or otherwise becomes unable to serve as guardian.
(d) A duly licensed nonprofit corporation that has been
appointed to serve as a guardian or as a conservator pursuant to
the provisions of this article is entitled to compensation in
accordance with the provisions of section thirteen of this
article.
(e) Except as provided in section thirteen of this article,
no guardian or conservator nor any officer, agent, director,
servant or employee of any such guardian or conservator shall do
business with or in any way profit, either directly or
indirectly, from the estate or income of any protected person for
whom services are being performed by such guardian or
conservator.
(f) Any bank or trust company authorized to exercise trust
powers or to engage in trust business in this state may be
appointed as a conservator if the court determines it is capable
of providing suitable conservatorship for the protected person.
(g) The department of adult protective services or a
department designated by the (h) The secretary of the department
of health and human resources shall designate a division or
agency under his or her jurisdiction which may be appointed to
serve as a guardian, a conservator, or both, for individuals
under its care or to whom it is providing services or financial
assistance, but such appointment may only be made if there is no
other individual, nonprofit corporation, bank or trust company, or other public agency that is equally or better qualified and
willing to serve: Provided, That when venue is transferred
pursuant to the provisions of this article and any sheriff was
initially appointed as guardian or conservator or committee for
the person, the department may not refuse to accept the
guardianship appointment. If the department has been appointed
as conservator, it may petition the circuit court to be released
as conservator.
(h) The sheriff of the county in which a court has assumed
jurisdiction may be appointed as a guardian, a conservator, or
both. but such appointment may only be made if there is no other
individual, nonprofit corporation, or other public agency that is
equally or better qualified and willing to serve: Provided, That
when the department of health and human resources was initially
appointed as conservator for the person, the sheriff may not
refuse to accept the conservatorship appointment.
(I) Other than a bank or trust company authorized to
exercise trust powers or to engage in trust business in this
state, a person who has an interest as a creditor of a protected
person shall not be eligible for appointment as either a guardian
or conservator of the protected person.
§44A-1-9. Posting of bonds; actions on bond.
(a) The court shall have the discretion to determine whether
the posting of a bond by a guardian, once appointed, is
necessary. No bond is required of any sheriff or representative
of the department of health and human resources appointed as
conservator or guardian.
(b) The court shall require the posting of a bond by a
conservator upon appointment except where the conservator is
excused from posting bond under the provisions of section
eighteen, article four of chapter thirty-one-a of this code. In
determining the amount or type of a conservator's bond, the court
shall consider:
(1) The value of the personal estate and annual gross income
and other receipts within the conservator's control;
(2) The extent to which the estate has been deposited under
an arrangement requiring an order of court for its removal;
(3) Whether an order has been entered waiving the
requirement that accountings be filed and presented or permitting
accountings to be presented less frequently than annually;
(4) The extent to which the income and receipts are payable
directly to a facility responsible for or which has assumed
responsibility for the care or custody of the protected person;
(5) The extent to which the income and receipts are derived
from state or federal programs that require periodic accountings;
(6) Whether a guardian has been appointed, and if so,
whether the guardian has presented reports as required; and
(7) Whether the conservator was appointed pursuant to a
nomination which requested that bond be waived.
(c) Any required bond shall be with such surety and in such
amount and form as the court may order, and the court may order
additional bond or reduce the bond whenever the court finds that
such modification is in the best interests of the protected
person or of the estate. The court may allow a property bond in lieu of a cash bond. Proof of bonding must be submitted to the
court within thirty days of appointment.
(d) In case of a breach of any condition placed on the bond
of any guardian or conservator, an action may be instituted by
any interested person for the use and benefit of the protected
person, for the estate of the protected person or for the
beneficiaries of such estate.
(e) The following requirements and provisions apply to any
bond which the court may require under this section:
(1) Unless otherwise provided by the terms of the approved
bond, sureties are jointly and severally liable with the
guardian/conservator and with each other.
(2) By executing an approved bond of a guardian or
conservator, the surety consents to the jurisdiction of the court
in any proceeding pertaining to the fiduciary duties of the
conservator and naming the surety as a party respondent. Notice
of any proceeding must be delivered to the surety or mailed by
registered or certified mail to the address of the surety listed
with the court in which the bond is filed. If the party
initiating a proceeding possesses information regarding the
address of a surety which would appear to be more current than
the address listed with the court, notice shall also be mailed by
registered or certified mail to the last address of the surety
known to the party initiating the proceeding.
(3) On petition of a successor guardian or conservator or
any interested person, a proceeding may be initiated against a
surety for breach of the obligation of the bond of the preceding guardian or conservator.
(4) The bond of the guardian or conservator is not void
after any recovery but may be proceeded against from time to time
until the whole penalty is exhausted.
(f) No proceeding may be commenced against the surety on any
matter as to which an action or proceeding against the guardian
or conservator is barred by adjudication or limitation.
§44A-1-14. Temporary protective order.
The court may, at the request of a petitioner or upon its
own motion, issue a temporary protective order prohibiting or
limiting the expenditure, sale or other legal transfer of any
assets of the alleged protected person until the appointment
proceeding has been held.
Article 2. Procedure for Appointment.
§44A-2-2. Who may file petition; contents.
(a) A petition for the appointment of a guardian, a
conservator, or both, may be filed by the individual alleged to
be a protected person, by a person who is responsible for or has
assumed responsibility for the individual's care or custody, by
the facility providing care to the individual, by the person that
the individual has nominated as guardian or conservator, or by
any other interested person, including, but not limited to, the
department of health and human resources.
(b) A petition for the appointment of a guardian, a
conservator, or both, shall state the petitioner's name, place of
residence, post office address, and relationship to the alleged protected person, and shall, to the extent known as of the date
of filing, include the following:
(1) The alleged protected person's name, date of birth,
place of residence or location, and post office address;
(2) The names and post office addresses of the alleged
protected person's nearest relatives, in the following order:
(I) The spouse and children, if any; or if none
(ii) The parents and brothers and sisters, if any; or if
none
(iii) The nearest known relatives who would be entitled to
succeed to the person's estate by intestate succession as set
forth in article one, chapter forty-two of this code.
Once a relative or several relatives have been identified in
one of the aforementioned categories, relatives in a lower
category do not have to be listed in the petition.
(3) The name, place of residence or location, and post
office address of the individual or facility that is responsible
for or has assumed responsibility for the person's care or
custody;
(4) The name, place of residence or location, and post
office address of any person designated as a surrogate
decision-maker for the alleged protected person, or of any
representative or representatives designated under a durable
power of attorney, medical power of attorney, or living will, of
which the alleged protected person is the principal, and the petitioner shall attach a copy of any such documents, if
available;
(5) The name, post office address and phone number of the
attorney representing the petitioner in the petition and
appointment proceedings.
(5) (6) Whether the person's incapacity will prevent
attendance at the hearing and the reasons therefor;
(6) (7) The type of guardianship or conservatorship
requested and the reasons for the request;
(7) (8) The proposed guardian or conservator's name, post
office address and, if the proposed guardian or conservator is an
individual, the individual's age, occupation and relationship to
the alleged protected person;
(8) (9) The name and post office address of a guardian
nominated by the alleged protected person if different from the
proposed guardian or conservator, and, if the person nominated as
a guardian or conservator is an individual, the individual's age,
occupation and relationship to the alleged protected person;
(9) (10) The name and post office address of any guardian or
conservator currently acting, whether in this state or elsewhere;
(10) (11) If the appointment of a limited guardian is
requested, the specific areas of protection and assistance to be
included in the order of appointment; and
(11) (12) If the appointment of a limited conservator is
requested, the specific areas of management and assistance to be included in the order of appointment.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.