ENGROSSED

COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 426

(By Senators Hunter, Mitchell, Ball and Love)

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[Originating in the Committee on the Judiciary;

reported March 1, 2000.]

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A BILL to amend and reenact section one, article two, chapter forty-four-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section eleven, article three of said chapter; to further amend said article by adding thereto a new section, designated section fifteen-a; and to amend and reenact section twenty-three, article three, chapter sixty-one of said code, all relating to conservators and guardians; creating a special revenue fund; increasing filing fees for petitions for appointment as guardian or conservator; requiring state auditor to conduct annual examination of accounts; requiring state auditor to prescribe forms for use by conservators and guardians; and clarifying that conservators are subject to the criminal provisions regarding embezzlement by fiduciaries.

Be it enacted by the Legislature of West Virginia:
That section one, article two, chapter forty-four-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section eleven, article three of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section fifteen-a; and that section twenty-three, article three, chapter sixty-one of said code be amended and reenacted, all to read as follows:
CHAPTER 44A. WEST VIRGINIA GUARDIANSHIP AND

CONSERVATORSHIP ACT.

ARTICLE 2. PROCEDURE FOR APPOINTMENT.
§44A-2-1. Filing of petition; jurisdiction; fees; special revenue account established; duties of auditor

(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 ninety dollars, payable upon filing to the circuit clerk, all seventy-five dollars 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.
(d) There is hereby created in the state treasury a special revenue account, which shall be an interest bearing account, to be known as the "enforcement of guardianship and conservatorship act fund". The special revenue account shall consist of fifteen dollars from each filing fee provided for in subsection (c) of this section.
(e) The accounts established pursuant to the provisions of this chapter shall be examined annually by the state auditor in accordance with the provisions of section seven, article nine, chapter six of this code, and payments from the fund created in subsection (c) of this section shall be made for expenses incurred in performing such examinations.
ARTICLE 3. GUARDIANSHIP AND CONSERVATORSHIP ADMINISTRATION.
§44A-3-11. Filing of reports and accountings.
(a) Reports of guardians and accountings of conservators, as described in this article, shall be filed with the circuit clerk of the county in which appointed within sixty days following the first anniversary of the appointment and:
(1) At least annually thereafter;
(2) When the court orders additional reports or accountings to be filed;
(3) When the guardian or conservator resigns or is removed; and
(4) When the appointment of the guardian or conservator is terminated, except that in the case of a guardian, the court may determine that there is no need for a report upon such termination; and in the case of a conservator, no accounting will be required if the persons entitled to the estate consent thereto.
(b) A guardian or conservator may elect to file a periodic report or accounting on a calendar-year basis; however, in no event may such a report or accounting cover a period of more than one year. A calendar-year report or accounting shall be filed with the circuit clerk no later than the fifteenth day of April of the succeeding year.
(c) The state auditor shall prescribe forms for reports required to be filed pursuant to the provisions of this article.
§44A-3-15a. Embezzlement by conservators or guardians; penalties.

Any person appointed as a guardian or conservator in accordance with the provisions of this article is subject to the provisions of section twenty-three, article three, chapter sixty- one.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 3. CRIMES AGAINST PROPERTY.

§61-3-23. Destroying or concealing will; embezzlement by fiduciary; penalty.

If any person fraudulently destroy or conceal any will or codicil, with intent to prevent the probate thereof, he shall be guilty of a felony and, upon conviction, be confined in the penitentiary not less than one nor more than five years. If any guardian, personal representative, conservator or other fiduciary, shall wilfully and knowingly fail to make and return an inventory of any personal property (of which an inventory is required by law to be made) which may come to his hands as such, or wilfully and knowingly fail or refuse to produce any such property for appraisement in the manner required by law, or wilfully and knowingly conceal or embezzle any such property, he shall be is guilty of the larceny thereof; and the failure of any such guardian, personal representative or other fiduciary to account for and pay over or deliver, when directed by the court, as required by law, any money, bullion, bank notes or other property, determined by the proper officer of court to be due and payable, shall be prima facie evidence that such guardian, personal representative, conservator or other fiduciary has embezzled the same.