Senate Bill No. 601
(By Senator Sprouse, By Request)
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[Introduced February 21, 2000; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section three, article three, chapter
forty-four-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to recovery of the
assets of persons with mental impairment which were lost to
them by the mismanagement of an attorney under a nondurable
power.
Be it enacted by the Legislature of West Virginia:
That section three, article three, chapter forty-four-a of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 3. GUARDIANSHIP AND CONSERVATORSHIP ADMINISTRATION.
§44A-3-3. Distributive duties and powers of the conservator of a protected person.
(a) A conservator of a protected person, without the necessity
of seeking prior court authorization, shall apply the income and
principal of the estate as needed for the protected person's
support, care, health, and if applicable, habilitation, education
or therapeutic needs. A conservator shall also apply the income
and principal as needed for the support of any legal dependents who
are unable to support themselves and who are in need of support.
(b) A conservator, when making distributions, shall exercise
authority only to the extent necessitated by the protected person's
limitations, and shall, where feasible, encourage the protected
person to participate in decisions, to act on his or her own
behalf, and to develop or regain the capacity to manage the estate
and his or her financial affairs. A conservator shall also
consider the size of the estate, the probable duration of the
conservatorship, the protected person's accustomed manner of
living, other resources known to the conservator to be available,
and the recommendations of the guardian.
(c) A conservator shall, to the extent known, consider the
express desires and personal values of the protected person when
making decisions, and shall otherwise act in the protected person's best interests and exercise reasonable care, diligence, and
prudence.
(d) A conservator may not revoke or amend a durable power of
attorney which has been executed by the protected person without
the prior approval of the court.
(e) A conservator shall, for any nondurable power of attorney
executed by the protected person prior to commencement of the
conservatorship, cause inquiry of all facts relative to the
management of the assets of the protected person by the attorney in
fact and, for any mismanagement found, the conservator shall take
all prudent action, including suit, to restore to the estate of the
protected person those assets lost to the protected person or the
value thereof.
NOTE: The purpose of this bill is to recover assets of
protected persons whose estates have been diminished by the
mismanagement of an attorney under a nondurable power of attorney.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.