COMMITTEE SUBSTITUTE
FOR
H. B. 4118
(By Delegates Cann, Warner, Coleman, Linch, Staton and Kominar)
(Originating in the Committee on the Judiciary)
[February 17, 1998]
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 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 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
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, or
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 to be a
missing person, or, 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.
(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" is a person absent from his or her
usual place of residence in the state, the person's whereabouts
unknown for a period of six months or more.
(10) (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 or missing person
resides, or, if the an 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 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.
(13)
For petitions to appoint a conservator for a missing
person, the petition must also provide t
he exact circumstances
which cause the person to be considered missing.
§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 for appointments of
conservators for missing persons, the court shall be 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.
(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) For hearings held to determine whether a conservator for
a missing person should be appointed, in addition to the
requirements of this section applicable to petition proceedings
for missing persons, the court must be satisfied by clear and
convincing evidence, that the person is missing and the need for
appointment of a conservator exists to prevent waste of the
missing persons property and other assets. If the court finds
that there is no necessity for a full conservatorship, the court
may appoint a limited conservator to administer or dispose of the
missing persons property and other assets as is necessary to
protect the best interests of the 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, or in the
case of a missing person, when the legal presumption of death is
established, or the missing person reappears, or 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 allow the appointment
of a conservator for any person who is missing for six or more
consecutive months; and establishes the process 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.