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Chapter 55     Entire Code
‹ Chapter 54  |  Chapter 56 › Printer Friendly Versions
Chapter 55  |  Article 55 - 7J
WVC 55- CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.
WVC 55-7J- ARTICLE 7J. FINANCIAL EXPLOITATION OF AN ELDERLY PERSON, PROTECTED PERSON OR INCAPACITATED ADULT.

WVC 55-7J-1

§55-7J-1. Action for financial exploitation of an elderly person, protected person or incapacitated adult; definitions.

(a) Any elderly person, protected person or incapacitated adult against whom an act of financial exploitation has been committed may bring an action under this article against any person who has committed an act of financial exploitation against him or her.

(b) For the purposes of this article:

(1) “Incapacitated adult” has the same meaning as prescribed under section twenty-nine, article two, chapter sixty-one of this code;

(2) “Elderly person” means a person who is sixty-five years or older;

(3) “Financial exploitation” or “financially exploit” means the intentional misappropriation or misuse of funds or assets of an elderly person, protected person or incapacitated adult, but shall not apply to a transaction or disposition of funds or assets where the defendant made a good-faith effort to assist the elderly person, protected person or incapacitated adult with the management of his or her money or other things of value; and

(4) “Protected person” means any person who is defined as a “protected person” in section four, article one, chapter forty-four-a of this code and who is subject to the protections of chapter forty-four-a or forty-four-c of this code.

WVC 55-7J-2

§55-7J-2. Restriction of defenses, standing alone, based on legal relationship.

Notwithstanding any provision of this code to the contrary, acting in a position of trust and confidence, including, but not limited to, as guardian, conservator, trustee or attorney for or holding power of attorney for an elderly person, protected person or incapacitated adult shall not, standing alone, constitute a defense to an action brought under this article.

WVC 55-7J-3

§55-7J-3. Court authorized remedies.

(a) In an action brought against a person under this article upon a finding that an elderly person, protected person or incapacitated adult has been financially exploited, the court may order:

(1) The return of property or assets improperly obtained, controlled or used; and

(2) An award of actual damages to the person who brought the action for any damages incurred or for the value of the property or assets lost as a result of the violation or violations of this article.

(b) In addition to the remedies provided in subsection (a) of this section, a court may order the following:

(1) For violations committed by a person who is not in a position of trust and confidence, payment of two times the amount of damages incurred or value of property or assets lost; and

(2) For violations committed by a person in a position of trust and confidence, payment of treble damages.

WVC 55-7J-4

§55-7J-4. Attorneys’ fees; court costs and burden of proof; statute of limitations.

(a) The court may award reasonable attorneys’ fees and costs to a person that brings an action under this section and prevails.

(b) The standard of proof in proving that a person committed financial exploitation in an action pursuant to this article is a preponderance of the evidence.

(c) An action under this article shall be brought within two years from the date of the violation or from the date of discovery, whichever is later in time.

WVC 55-7J-5

§55-7J-5. Action to freeze assets; burden of proof; options the court may exercise.

(a) An elderly person, protected person or incapacitated adult may bring an action to enjoin the alleged commission of financial exploitation and may petition the court to freeze the assets of the person allegedly committing the financial exploitation in an amount equal to, but not greater than, the alleged value of lost property or assets for purposes of restoring to the victim the value of the lost property or assets. The burden of proof required to freeze the assets of a person allegedly committing financial exploitation shall be a preponderance of the evidence. Upon a finding that the elderly person, protected person or incapacitated adult has been formally exploited, the court may:

(1) Grant injunctive relief;

(2) Order the violator to, in escrow an amount of money equivalent to the value of the misappropriated assets for distribution to the aggrieved elderly person, protected person or incapacitated adult;

(3) Order the violator to return to the elderly person, protected person or incapacitated person any real or personal property which was misappropriated; or

(4) Provide for the appointment of a receiver;

(b) In an action under section one of this article, the court may void or limit the application of contracts or clauses resulting from the financial exploitation.

(c) In an action brought under this article, upon the filing of the complaint or on the appearance of any defendant, claimant or other party, or at any later time, the court may require the plaintiff, defendant, claimant or other party or parties to post security, or additional security, in a sum the court directs to pay all costs, expenses and disbursements that are awarded against that party or that the party may be directed to pay by any interlocutory order, by the final judgment or after appeal.

WVC 55-7J-6

§55-7J-6. Penalty for violation of injunction; retention of jurisdiction.

Any person who violates the terms of an order issued under section five of this article shall be subject to proceeding for contempt of court. The court issuing the injunction may retain jurisdiction if, in its discretion, it determines that to do so is in the best interest of the elderly person, protected person or incapacitated adult. Whenever the court determines that an injunction issued under section five of this article has been violated, the court may award reasonable costs to the party asserting that a violation has occurred.

Note: WV Code updated with legislation passed through the 2016 Regular Session
The West Virginia Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.


Recent legislation affecting the Code

Citation Year/Session Short Title
§55 - 7 B- 2 - (Amended Code)
§55 - 7 B- 4 - (Amended Code)
§55 - 7 B- 6 - (Amended Code)
§55 - 7 B- 10 - (Amended Code)
§55 - 7 B- 11 - (Amended Code)
SENATE BILL - 338
PASSED - Regular Session

SB338 SUB1 enr  (Uploaded - 10/06/2017)
Relating to medical professional liability
§55 - 7 - 19 - (Amended Code)
SENATE BILL - 497
PASSED - Regular Session

SB497 SUB1 enr  (Uploaded - 10/02/2017)
Relating to liability for health care providers who provide services at school athletic events
§55 - 7 - 31 - (New Code)
HOUSE BILL - 2850
PASSED - Regular Session

HB2850 SUB ENR  (Uploaded - 10/06/2017)
Relating to product liability actions
§55 - 7 - 13 D - (Amended Code)
§55 - 7 B- 5 - (Amended Code)
SENATE BILL - 7
PASSED - Regular Session

SB7 SUB1 ENR  (Uploaded - 02/25/2016)
Establishing wrongful conduct rule prohibiting recovery of damages in certain circumstances
§55 - 7 I- 1 - (New Code)
§55 - 7 I- 2 - (New Code)
§55 - 7 I- 3 - (New Code)
§55 - 7 I- 4 - (New Code)
§55 - 7 I- 5 - (New Code)
§55 - 7 I- 6 - (New Code)
§55 - 7 I- 7 - (New Code)
SENATE BILL - 14
PASSED - Regular Session

SB14 ENR  (Uploaded - 02/23/2016)
Limiting successor corporation asbestos-related liabilities
§55 - 7 - 30 - (New Code)
SENATE BILL - 15
PASSED - Regular Session

SB15 enr  (Uploaded - 02/18/2016)
Adopting learned intermediary doctrine as defense to civil action due to inadequate warnings or instructions
§55 - 2 - 21 - (Amended Code)
SENATE BILL - 29
PASSED - Regular Session

SB29 ENR  (Uploaded - 03/08/2016)
Tolling statute of limitations in certain cases
§55 - 7 B- 9 - (Amended Code)
§55 - 7 B- 9 C - (Amended Code)
SENATE BILL - 602
PASSED - Regular Session

SB602 SUB1 ENR  (Uploaded - 03/23/2016)
Relating to Patient Injury Compensation Fund
§55 - 7 - 23 - (Amended Code)
SENATE BILL - 627
PASSED - Regular Session

SB627 ENR  (Uploaded - 03/11/2016)
Permitting physician to decline prescribing controlled substance
§55 - 2 - 15 - (Amended Code)
HOUSE BILL - 2605
PASSED - Regular Session

hb2605 ENR  (Uploaded - 03/17/2016)
Removing the limitation on actions against the perpetrator of sexual assault or sexual abuse upon a minor
§55 - 7 J- 1 - (New Code)
§55 - 7 J- 2 - (New Code)
§55 - 7 J- 3 - (New Code)
§55 - 7 J- 4 - (New Code)
§55 - 7 J- 5 - (New Code)
§55 - 7 J- 6 - (New Code)
HOUSE BILL - 4309
PASSED - Regular Session

hb4309 ENR  (Uploaded - 03/23/2016)
Increasing criminal penalties for conviction of certain offenses of financial exploitation of an elderly person
§55 - 7 B- 2 - (Amended Code)
HOUSE BILL - 4735
PASSED - Regular Session

hb4735 ENR  (Uploaded - 03/07/2016)
Relating to the definition of health care provider, and clarifying that speech-language pathologists and audiologists are two separate providers
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