H. B. 4118
(By Delegates Cann, Warner, Coleman,
Linch, Staton and Kominar)
[Introduced Janaury 29, 1998; referred to the
Committee on the Judiciary.]
A BILL 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 and nine, article two; and section
five, article four, all of said chapter forty-four-a, all
relating to the West Virginia guardianship and
conservatorship act; adding situations of persons who are
absent from last domicile in this state for six or more
consecutive months to the proceedings requiring a hearing to
determine the management of the estate of the missing
person; and adding such missing persons to the definition of
"protected person" and the procedure for the appointment of
a guardian or conservator of the estate of such missing
persons.
Be it enacted by the Legislature of West Virginia:
That sections one and four, article one; sections one, two and nine, article two; and section five, article four, all of
chapter forty-four-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, 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 or
mentally handicapped or a person who is or has been absent for a
period of six or more consecutive months from the place of that
person's last domicile within this state and has not been heard
from for that period of time by those persons who, if the missing
person were alive, would normally have heard from the missing
person 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 or a person who is or
has been absent for a period of six or more consecutive months
from the place of that person's last domicile within this state
and has not been heard from for that period of time by those
persons who, if the missing person were alive, would normally
have heard from the missing person
. 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.
(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) "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, in
the case of a person who has been absent for a period of six or
more consecutive months, last resided, or, if the alleged
protected person has been admitted to a health care or
correctional facility, in the county in which that facility is
located.
(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, or in the case of a person who
has been absent for a period of six or more consecutive months,
that missing person's last known place of residence of 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; and
(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-2-9. 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. 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. 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, or is a person who has been absent for
a period of six or more consecutive months.
(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.
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, or in the
case of a person who has been absent for a period of six or more
consecutive months, when the legal presumption of death is
established, whenever jurisdiction is transferred to another state or if ordered by the court following a hearing on the
petition of any interested person.
NOTE: The purpose of this bill is to add situations of
persons who are absent from their last domicile in this state for
six or more consecutive months to the proceedings requiring a
hearing to determine the management of the estate of the missing
person under the West Virginia Guardianship and Conservatorship
Act.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.