House Bill 4613 History
H. B. 4613
(By Delegates Webster, Walters, Kessler, Caputo, Fleischauer,
Ellem, Brown, Manchin, Shook and Hamilton)
[Introduced February 18, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §46A-6H-3 of the Code of West Virginia,
1931, as amended, relating to requiring court approval for
certain structured settlement transfers; requiring appointment
of guardian ad litem; payment of guardian ad litem, attorneys'
fees and costs; required findings; and standard of proof.
Be it enacted by the Legislature of West Virginia:
That §46A-6H-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
§46A-6H-3. Requirement of court approval for certain structured
(a) In addition to the requirements of this article,
agreement shall agreements must
be approved by the circuit
court of the county wherein the consumer resides or where the
structured settlement agreement was executed when
(1) The structured settlement payment rights belong to an
infant or an incompetent person; or
the structured settlement payment rights arise from a personal injury or other claim.
(i) The aggregate of the structured settlement payment rights
exceeds forty thousand dollars; or
(ii) The structured settlement agreement contains a provision
restricting the right of the consumer to assign or transfer the
consumer's future payment rights.
(b) The transferee shall commence the action by filing a
petition with the court seeking approval of the transfer and
providing to the court the disclosure statement required by
subsection (a), section two of this article.
(c) The circuit court shall set a time and date for a hearing
on the matter within twenty-one days of the date of the filing of
the petition. The transferee shall notify the consumer and all
interested parties of the date and time of the hearing and provide
them with a copy of the petition.
(d) The court shall appoint a guardian ad litem for the
where the structured settlement payment
rights belong to an infant, an incompetent person or a ward of the
The guardian ad litem shall review the requisite disclosures
and make an independent inquiry to determine whether the proposed
transfer is fair, reasonable and in the best interests of the
consumer and any dependents of the consumer as well and determining
if transfer has been attempted or accomplished before.
information shall be reported to the court during the hearing on
(e) An interested party has the right to appear and contest the proposed transfer at the time of the hearing. If, after proper
notice, the interested party does not make an appearance, then the
interested party shall be bound by the court's ruling.
(f) After a hearing or upon its own motion, the court may
approve the transfer if the court finds that:
(1) The consumer has
demonstrated presented clear and
that: (A) He or she, or his or her
parents or dependents,
is facing a financial hardship that the
transfer would alleviate
and that the transfer would not subject
the consumer or the consumer's
family parents or dependents
undue financial hardship in the future;
(B) the transfer is
in the best interest of the consumer: Provided,
That the judge
disclose the inquire of the guardian ad litem and the
transferee as to
possible adverse tax consequence to the consumer
and inform the consumer of the result of said inquiry;
(2) The transferee is in compliance with the provisions of
section two of this article; and
(3) The transfer agreement does not contravene the terms of
the structured settlement agreement, including any restrictions on
the right of the consumer to transfer his or her structured
settlement payment rights, unless the annuity issuer and structured
settlement obligor have consented to the transfer. However, the
approval of the annuity issuer and the structured settlement
obligor shall not be required if, at the time the consumer and the
transferee entered into the transfer agreement, a favorable tax
determination was in effect.
(g) The court shall award the guardian ad litem reasonable
fees for representing the consumer.
fees and costs
shall be paid by the transferee.
(h) A consumer may request court approval for a transfer that
does not mandate court approval under this section. Such voluntary
petition by the consumer shall then become subject to the
provisions of this section. The transferee shall be responsible
for filing the action pursuant to subsection (b) of this section
shall be responsible for attorney's fees or
guardian ad litem fees.
NOTE: The purpose of this bill is to increase protection to
beneficiaries of structured settlements as they relate to
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would