Senate Bill No. 426
(By Senator Hunter, Mitchell, Ball and Love)
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[Introduced February 8, 2000; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A Bill to amend chapter forty-four-a of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article six, relating to
providing for criminal penalties against conservators for
fraudulent conduct; creating felony and misdemeanor
violations; requiring the administrative office of the supreme
court to take responsibility for effectuating the purposes of
said chapter while creating a special revenue fund to be used
by the supreme court for that purpose; and requiring the
Legislature to initially appropriate five hundred thousand
dollars to the fund and thereafter requiring the circuit clerk
to collect fifteen dollars on each application for
guardianship or conservatorship as a funding source.
Be it enacted by the Legislature of West Virginia:
That chapter forty-four-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article six, to read as follows:
ARTICLE 6. CRIMINAL SANCTIONS.
§44A-6-1. Findings and declarations.
The Legislature hereby makes the following findings and
declarations.
(a) Inadequate review and audit processes have existed to
safeguard persons with appointed conservators under this chapter.
As a result, a lack of accountability of appointed conservators has
been permitted to exist to the detriment of disabled, incompetent
and helpless persons.
(b) Unless changes are made to address the existing need for
criminal sanctions related to the review and audit processes, the
current prospect for unsavory and fraudulent practices perpetrated
by dishonest conservators at the expense and to the detriment of
disabled, incompetent and helpless persons will be left unabated.
(c) It is the intent of the Legislature to provide tough
criminal sanctions against those who, while disguised in a position
of high fiduciary status, are inclined to take advantage of
disabled, incompetent and helpless individuals by raiding and pillaging the very financial resources they have agreed to preserve
and protect for the benefit of those disabled, incompetent or
disabled persons.
§44A-6-2. Fraudulent misappropriation or conversion of funds;
other violations of chapter.
(a) Any person, who after being appointed as a conservator
under the provisions of this chapter, knowingly misappropriates,
converts, conceals or embezzles any assets or funds valued greater
than two hundred dollars over which he or she has been appointed to
conserve is guilty of a felony and, upon conviction thereof, shall
be imprisoned in a state correctional facility for not less than
three years and fined not more than ten thousand dollars.
(b) Any person who knowingly misappropriates, converts,
conceals or embezzles any assets for funds of a value less than two
hundred dollars or who violates any provision of this chapter, in
which no penalty has been prescribed, is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than five
hundred nor more than five thousand dollars for each occurrence, or
confined in a county or regional jail facility for a term not to
exceed one year.
(c) Any person found guilty of misappropriation, conversion,
concealment or embezzlement of funds over which the person was appointed to conserve, shall be ordered by the court to make
restitution of the full amount of the funds so misappropriated,
converted, concealed or embezzled.
§44A-6-3. Rule making to effectuate the purposes of this chapter
to be effectuated by administrative office of the
supreme court of appeals.
The administrative office of the supreme court of appeals
shall have responsibility for the implementation, management,
guidance and direction of the provisions of this chapter. The
administrative office of the supreme court of appeals shall apprize
the Legislature on or before the first day of February each year of
the minimum appropriation requirements it perceives are necessary
toward full implementation of the provisions of this chapter.
§44A-6-4. Special revenue account established; fee to be collected
by circuit clerk upon application for
conservatorship.
There is hereby created a special revenue account to be
maintained in the office of the state treasurer herein designated
the "Enforcement of Guardianship and Conservatorship Act Fund."
The Legislature shall appropriate from the general revenue fund at
the fund's inception, five hundred thousand dollars. Thereafter,
the circuit clerk upon each application for guardianship or conservatorship under the provisions of this chapter shall collect
a fee of fifteen dollars that shall be designated for and deposited
into the "Enforcement of Guardianship and Conservatorship Act
Fund." The fund shall be used by the administrative office of the
supreme court of appeals to effectuate the purposes of this
chapter.
NOTE: The purpose of this bill is to create criminal penalties
for fraudulent activities perpetrated by conservators. The bill
creates felony and misdemeanor violations. The bill also requires
the administrative office of the administrative office of the
supreme court to take responsibility for effectuating the purposes
of chapter 44A while creating a special revenue fund to be used by
the supreme court for that purpose. The Legislature initially
would appropriate $500,000 to the fund and thereafter the circuit
clerk would collect $15 on each application for guardianship or
conservatorship as a funding source.
This article is new; therefore, strike-throughs and
underscoring have been omitted.