ENROLLED

COMMITTEE SUBSTITUTE

FOR


Senate Bill No. 100

(Senators Oliverio, Anderson, Buckalew and Deem, original sponsors)

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[Passed April 11, 1997; in effect ninety days from passage.]

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AN ACT 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; to further amend said article by adding thereto a new section, designated section fourteen; and to amend and reenact sections two and six, article two of said chapter, all relating generally to the guardianship and conservator appointment process; permitting judges to appoint coguardians and/or coconservators; 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 human resources; requiring proof of bonding to be submitted to the appointing court; modifying appointment petition; allowing the appointing court authority to protect the alleged protected persons assets during the petition process; and providing for notice and opportunity for hearing before a person is appointed guardian or conservator.

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 and reenacted; that said article be further amended by adding thereto a new section, designated section fourteen; and that sections two and six, article two of said chapter be amended and reenacted, all to read as follows:

ARTICLE 1. DEFINITIONS AND GENERAL PROVISIONS.

§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 the court may, after first determining it to be in the best interest of the protected person, appoint coguardians and/or coconservators: Provided, however, 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) (g) 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. If the sheriff has been appointed as guardian, he or she may petition the circuit court to be released as guardian.
(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, 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; and
(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.
§44A-2-6. Notice of hearing.

(a) Upon the filing of the petition and evaluation report, the court shall promptly issue a notice fixing the date, hour and location for a hearing to take place within sixty days.
(b) The alleged protected person shall be personally served with the notice, a copy of the petition, and the evaluation report not less than fourteen days before the hearing. The person may not waive notice, and a failure to properly notify the person shall be jurisdictional.
(c) A copy of the notice, together with a copy of the petition, shall be mailed by certified mail, return receipt requested, by the petitioner, at least fourteen days before the hearing to all individuals seven years of age or older and to all entities whose names and post office addresses appear in the petition. A copy of certified mail return receipts shall be filed in the office of the circuit clerk on or before the date of hearing.
(d) The notice shall include a brief statement in large print of the purpose of the proceedings, and shall inform the alleged protected person of the right to appear at the hearing, the right to an attorney and the right to object to the proposed appointment. Additionally, the notice shall include the following statement in large print:
POSSIBLE CONSEQUENCES OF A COURT FINDING

THAT YOU ARE INCAPACITATED

At the hearing you may lose many of your rights. A guardian may be appointed to make personal decisions for you. A conservator may be appointed to make decisions concerning your property and finances. The appointment may affect control of how you spend your money, how your property is managed and controlled, who makes your medical decisions, where you live, whether you are allowed to vote and other important rights.
 (e) No person may be appointed a guardian or conservator without first receiving proper notice and having the opportunity for a hearing.