Senate Bill No. 426
(By Senators Hunter, Mitchell, Ball and Love)
[Originating in the Committee on the Judiciary;
reported March 1, 2000.]
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
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
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
(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
(3) When the guardian or conservator resigns or is removed;
(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
(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-
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-23. Destroying or concealing will; embezzlement by
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.
(NOTE: The purpose of this bill is to create a special revenue
account to be funded by a $15 increase in the fee for filing a
petition to be appointed a conservator or guardian of a protected
person; this fund would be used by the auditor to audit conservator
accounts. The auditor would be required to prescribe forms for use
in reporting by conservators. The bill also clarifies that the
provisions regarding embezzlement by a fiduciary apply to such
guardians or conservators.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added. Section fifteen-a is new; therefore, strike-throughs and
underscoring have been omitted.)