HB2788 H SI AM 2-25 #1

The Committee on Senior Citizen Issues moves to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:
" That §61-2-29 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
§61-2-29. Abuse or neglect of incapacitated adult; abuse or neglect of elder person; misappropriation or misuse of assets or funds of elder person; misappropriation or misuse of assets or funds of elder person through deception, intimidation, coercion, bodily injury or threats of bodily injury; penalties.

(a) The following words when used in this section have the meaning: ascribed, unless the context clearly indicates otherwise:
(1) "Abuse" means the infliction or threat to inflict physical pain or injury, not for the purpose of medical treatment; on an incapacitated adult or elder person
(2) "Bodily injury" means substantial physical pain, illness or any impairment of physical condition;
(2)(3) "Caregiver" means an adult who has or shares actual physical possession or care of an incapacitated adult or elder person elder person or incapacitated adult on a full-time or temporary basis, regardless of whether such person has been designated as a guardian of such adult the elder person or incapacitated adult by any contract, agreement or legal proceeding. Caregiver includes health care providers, family members, and any person who otherwise voluntarily accepts a supervisory role towards an incapacitated adult or elder person;
(4) "Custodian" means a person over the age of eighteen years who has or shares actual physical possession of care and custody of elder person or incapacitated adult on a full-time or temporary basis, regardless of whether the person has been granted custody of the elder person or incapacitated adult by any contract, agreement or legal proceeding.
(3)(5) "Neglect" means: (i) (A) The failure to provide the necessities of life to an incapacitated adult or elder person elder person or incapacitated adult; or (ii) (B) the unlawful expenditure or willful dissipation of the funds or other assets owned or paid to or for the benefit of an incapacitated adult or elder person elder person or incapacitated adult;
(4)(6) "Incapacitated adult" means any person who by reason of physical, mental or other infirmity is unable to physically carry on the daily activities of life necessary to sustaining life and reasonable health;
(5)(7) "Elder" means a person age sixty-five years or older;
(6) "Bodily injury" means substantial physical pain, illness or any impairment of physical condition; and
(7) "Custodian" means a person over the age of eighteen years who has or shares actual physical possession of care and custody of an elder person on a full-time or temporary basis, regardless of whether the person has been granted custody of the elder person by any contract, agreement or legal proceeding.
(8) "Serious bodily injury" means bodily injury which creates a substantial risk of death, which causes serious or prolonged disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ.
(b) Any person, caregiver, guardian or custodian who neglects an elder person or incapacitated adult or elder person, or who knowingly permits another person to neglect said adult, the elder person or incapacitated adult is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 $100 nor more than $1,500 $500 or imprisoned in the county or regional confined in jail for not less than ninety days nor more than one year, or both fined and imprisoned confined.
(c) If any person, caregiver, guardian or custodian of an elder person or incapacitated adult who intentionally abuses or intentionally neglects an incapacitated adult or elder person or incapacitated adult and causes the elder person or incapacitated adult bodily injury, then the person, caregiver, guardian or custodian is guilty of a felony and, upon conviction thereof, shall in the discretion of the court, be confined in a state correctional facility for not less than two nor more than ten years be fined not less than $100 nor more than $1,000 or imprisoned in a state correctional facility for not less than one nor more than three years, or both fined and imprisoned.
(d) If any person, caregiver, guardian or custodian of an elder person or incapacitated adult intentionally abuses or intentionally neglects the elder person or incapacitated adult and causes the elder person or incapacitated adult serious bodily injury, then the person, caregiver, guardian or custodian is guilty of a felony and, upon conviction thereof, shall be fined not less than $300 nor more than $3,000 or imprisoned in a state correctional facility not less than one nor more than ten years, or both fined and imprisoned.
 (e) If any person, caregiver, guardian or custodian of an elder person or incapacitated adult intentionally abuses or intentionally neglects the elder person or incapacitated adult causes death of the elder person or incapacitated adult , then the person, caregiver, guardian or custodian of an elder person or incapacitated adult is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000 or imprisoned in a state correctional facility for not less than three nor more than fifteen years, or both fined and imprisoned.
(d)(f) If any person, caregiver, guardian or custodian of an elder person or incapacitated adult, willfully misappropriates or willfully misuses the funds or assets of an incapacitated adult or elder person for the person's, caregiver's, guardian's, or custodian's personal use, advantage or wrongful profit or to the advantage or wrongful profit of another, he or she is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000 and incarcerated imprisoned in a state correctional facility not less than two nor more than ten years.
(e)(g) If any person, caregiver, guardian or custodian of an elder person or incapacitated adult, by means of intentional deception, intimidation, coercion, infliction of bodily injury or threats of the infliction of bodily injury, willfully misappropriates or willfully misuses the funds or assets of an incapacitated adult or elder person elder person or incapacitated adult for the person's, caregiver's, guardian's, or custodian's personal use, advantage or wrongful profit or to the advantage or wrongful profit of another, he or she is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000 and incarcerated imprisoned in a state correctional facility not less than five nor more than fifteen years.
(f)(h) Nothing in this article shall be construed to mean an adult is abused or neglected for the sole reason that his or her independent decision is to rely upon treatment by spiritual means in accordance with the tenets and practices of a recognized church or religious denomination or organization in lieu of medical treatment.