ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4118
(By Delegates Cann, Warner, Coleman, Linch, Staton and Kominar)

[Passed March 14, 1998; in effect ninety days from passage.]

AN ACT to amend and reenact sections one and four, article one, chapter forty-four-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact sections one, two, six and nine, article two of said chapter; and to amend and reenact section five, article four of said chapter, all relating generally to establishing conservatorship for missing persons; defining missing person; and providing petition, notice and hearing requirements for appointing conservators for missing persons.

Be it enacted by the Legislature of West Virginia:
That sections one and four, 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 sections one, two, six and nine, article two of said chapter be amended and reenacted; and that section five, article four of said chapter be amended and reenacted, all to read as follows:
ARTICLE 1. DEFINITIONS AND GENERAL PROVISIONS.

§44A-1-1. Short title and legislative findings.

This chapter shall be known and may be cited as the "West Virginia Guardianship and Conservatorship Act."
The Legislature finds that section six, article eight of the constitution of the state of West Virginia gives it the discretionary authority to pass legislation which "...provides that all matters of probate, the appointment and qualification of personal representatives, guardians, committees and curators, and the settlements of their accounts..." be under the exclusive jurisdiction of circuit courts. The Legislature further finds and declares that the use of the word "all" does not require an interpretation that the Legislature must place every aspect of such matters with circuit courts, but, that because of the discretionary authority given, the Legislature may transfer, from time to time, only those matters which it believes would be better served under the jurisdiction of circuit courts.
The Legislature hereby further finds and declares that legal proceedings requiring a tribunal to determine whether persons should be appointed to manage the personal or financial affairs of individuals deemed mentally incompetent, mentally retarded, mentally handicapped or missing involve considerations of constitutionally protected rights which can best be resolved within the circuit courts of this state.

§44A-1-4. Definitions.

As used in this chapter, unless a different meaning is clearly required by the context:
(1) "Conservator" means a person appointed by the court who is responsible for managing the estate and financial affairs of a protected person, and, where the context plainly indicates, the term "conservator" shall mean or include a "limited conservator" or a "temporary conservator."
(2) "Guardian" means a person appointed by the court who is responsible for the personal affairs of a protected person, and, where the context plainly indicates, the term "guardian" shall mean or include a "limited guardian" or a "temporary guardian."
(3) "Protected person" means an adult individual, eighteen years of age or older, who has been found by a court, because of mental impairment, to be unable to receive and evaluate information effectively or to respond to people, events, and environments to such an extent that the individual lacks the capacity: (A) To meet the essential requirements for his or her health, care, safety, habilitation, or therapeutic needs without the assistance or protection of a guardian; or (B) to manage property or financial affairs or to provide for his or her support or for the support of legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgment, alone, will not be considered sufficient evidence that the individual is a protected person within the meaning of this subsection. "Protected person" also means a person whom a court has determined is a missing person.
(4) "Interested person" means: (A) An individual who is the subject of a guardianship or conservatorship proceeding; (B) a guardian or conservator of a protected person; and (C) any other person with an actual and substantial interest in the proceeding, either generally or as to a particular matter, as distinguished from a person who has only a nominal, formal, or technical interest in or connection with the proceeding.
(5) "Limited conservator" means a person appointed by the court who has only those responsibilities for managing the estate and financial affairs of a protected person, as specified in the order of appointment.
(6) "Limited guardian" means one appointed by the court who has only those responsibilities for the personal affairs of a protected person, as specified in the order of appointment.
(7) "Person" means, generally, a natural person, any corporation, association, partnership or other business entity, any political subdivision or other public agency, or any estate, trust or other collection of properties to which the law attributes the capacity of having rights or duties.
(8) "Living will" means a living will existing and duly executed in accordance with the provisions of section three, article thirty, chapter sixteen of this code.
(9) "Medical power of attorney" means a power of attorney existing and duly executed in accordance with the provisions of section six, article thirty-a, chapter sixteen of this code.
(10) "Missing person" means an adult individual, eighteen years of age or older, who is absent from his or her usual place of residence in the state and whose whereabouts are unknown for a period of six months or more.
(11) "Surrogate decision-maker" means an individual identified as such by an attending physician in accordance with the provisions of section seven, article thirty-b, chapter sixteen of this code.
ARTICLE 2. PROCEDURE FOR APPOINTMENT.

§44A-2-1. Filing of petition; jurisdiction; fees.

(a) A petition for the appointment of a guardian or conservator shall be filed with the clerk of the circuit court in the county in which the alleged protected person resides, or, if an alleged protected person has been admitted to a health care or correctional facility, in the county in which that facility is located. A petition for the appointment of a conservator for a missing person shall be filed with the clerk of the circuit court in the county in which the missing person last resided.
(b) The circuit court in which the proceeding is first commenced shall have exclusive jurisdiction unless that court determines that a transfer of venue would be in the best interests of the person alleged to need protection.
(c) The fee for filing a petition shall be seventy dollars, payable upon filing to the circuit clerk, all of which shall be retained by the circuit clerk. The person bringing the petition shall be responsible for fees for filings of the petition and other papers, for service of process, and for copies of court documents and transcripts. In the event that a guardian and/or conservator is appointed by the court, such fees shall be reimbursed to the individual who filed the petition from the protected person's estate, if funds are available. Any person who is pecuniarily unable to pay such fees and costs as set forth in article one, chapter fifty-nine of this code, and article two, chapter fifty-one of this code, will not be required to pay said fees and costs.
§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;
(6) Whether the person's incapacity will prevent attendance at the hearing and the reasons therefor;
(7) The type of guardianship or conservatorship requested and the reasons for the request;
(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;
(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;
(10) The name and post office address of any guardian or conservator currently acting, whether in this state or elsewhere;
(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;
(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; and
(13) If the appointment of a conservator is requested for a missing person, the specific circumstances under which the person is considered missing.
§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. In the case of a missing person, a copy of the petition for the appointment of a conservator shall be mailed by certified mail, return receipt requested, by the petitioner, at least fourteen days before the hearing to the last known address of the missing person. 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.

§44A-2-9. Hearing on petition to appoint.

(a) The court may hear the petition for the appointment of a guardian or conservator or may designate the mental hygiene commissioner in the circuit to serve as the trier of fact at the hearing on the petition. Provided, That the court shall be the trier of fact at the hearing on a petition for the appointment of a conservator for a missing person. If a mental hygiene commissioner is appointed, a mental hygiene commitment proceeding may not be held simultaneously with a proceeding for the appointment of a guardian or conservator. The designated mental hygiene commissioner shall submit written findings of fact and recommendations to the court upon conclusion of the hearing. The court may accept or reject the recommendations of the mental hygiene commissioner. Only the court may enter an order appointing a guardian or conservator.
(b) The hearing may be held at such convenient place as the court or mental hygiene commissioner directs, including the place where the alleged protected person is located. The hearing shall be closed to the public. The proposed guardian or conservator shall attend the hearing except for good cause shown. Any individual or entity may apply for permission to observe or participate at the hearing, and the court or mental hygiene commissioner shall grant the request if reasonably satisfied that the applicant's participation would be in the best interests of the alleged protected person.
(c) The alleged protected person is entitled to attend the hearing, to oppose the petition, to be represented by an attorney, to present evidence, to compel the attendance of witnesses and to confront and cross-examine all witnesses. If the alleged protected person is present at the hearing, the court or mental hygiene commissioner shall verbally inform the person of such rights, of the contents of the petition, and of the purpose and legal effect of the appointment of a guardian or conservator. Except in the case of a missing person, the hearing shall not proceed if the alleged protected person is not present unless there is an affidavit of a physician presented to the court, qualified expert testimony to warrant a finding that the presence of the individual is not possible due to a physical inability or that such presence would significantly impair his or her health, or evidence that the person refuses to appear.
(d) The standard of proof to be applied in determining whether the alleged protected person is a person for whom a guardian or conservator should be appointed is clear and convincing evidence.
(e) The court shall make specific findings of fact and conclusions of law in support of any orders entered.
(f) Upon request, a transcript of the proceedings of appointment shall be provided for the purposes of an appeal.
(g) In the case of a hearing held on a petition for the appointment of a conservator for a missing person, the court must be satisfied by clear and convincing evidence that the person has been missing and their whereabouts are unknown for six months or more and the appointment of a conservator is necessary to protect the interests of and to manage the estate and the financial affairs of the missing person. If the court finds there is no necessity to appoint a full conservator, the court may appoint a limited conservator to manage the estate and financial affairs of the missing person. The court may, only as a last resort, appoint a sheriff to serve as a conservator for a missing person.

ARTICLE 4. TERMINATION, REVOCATION AND MODIFICATION OF APPOINTMENTS.

§44A-4-5. Termination of guardianship or conservatorship of protected person - When authorized.

A guardianship or conservatorship of a protected person shall terminate upon the death of the protected person, whenever jurisdiction is transferred to another state or if ordered by the court following a hearing on the petition of any interested person. In the case of a missing person, a conservatorship shall terminate when the person's death is established by the production of a certified death certificate, the person is presumed dead pursuant to the provisions of article nine, chapter forty-four of this code, or the missing person is located.