Senate Bill No. 294
(By Senators Laird, Tomblin (Mr. President), Jenkins, Green,
White and Kessler)
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[Introduced February 19, 2009; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §61-2-29 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto
three new sections, designated §61-2-29a, §61-2-29b and
§61-2-29c, all relating to protecting incapacitated persons
and elderly persons by providing criminal penalties for the
offense of abuse or neglect of incapacitated adults or elderly
persons which result in death; definitions; and sexual abuse
by a caregiver, guardian or custodian.
Be it enacted by the Legislature of West Virginia:
That §61-2-29 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto three new sections, designated §61-2-29a, §61-2-29b and
§61-2-29c, all to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§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
bodily injury on an incapacitated adult or elder person;
(2) "Caregiver" means an adult who has or shares actual
physical possession or care of an incapacitated adult or elder
person on a full-time or temporary basis, regardless of whether
such person has been designated as a guardian of such 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;
(3) "Neglect" means: (i) The failure to provide the
necessities of life to an incapacitated adult or elder person; or
(ii) 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;
(4) "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) "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;
and
(8) "Sexual exploitation" means an act whereby a caregiver,
guardian or custodian to an incapacitated adult or elder person,
whether for financial gain or not, persuades, induces, entices or
coerces the incapacitated adult or elder person to engage in sexual
contact, sexual intercourse or sexual intrusion as these terms are
defined in section one, article eight-b, chapter sixty-one of this
code.
(b) Any person, caregiver, guardian or custodian who neglects
an incapacitated adult or elder person, or who knowingly permits
another person to neglect said adult, is guilty of a
misdemeanor
felony and, upon conviction thereof, shall be fined not less than
$500.00 nor more than
fifteen hundred dollars $5,000, or imprisoned
in
the county or regional jail a state correctional facility for
not less
than ninety days nor more than one year nor more than five
years, or both fined and imprisoned.
(c)
Any A person, caregiver, guardian or custodian who
intentionally abuses
or neglects an incapacitated adult or elder
person 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.
(d)
If any Any person,
caregiver, guardian or custodian of an
elder person or incapacitated adult, who willfully misappropriates,
or 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 in a
state correctional facility not less than two
nor more than ten years.
(e)
If any Any person
caregiver, guardian or custodian of an
elder person or incapacitated adult who, by means of deception,
intimidation, coercion, infliction of bodily injury or threats of
the infliction of bodily injury, willfully misappropriates, or
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 in a
state correctional facility not less than five
nor more than fifteen years.
(f) 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.
§61-2-29a. Murder of an incapacitated adult or elderly person by
a caregiver, guardian or custodian.
(a) Any caregiver, guardian or custodian of an incapacitated
adult or elder person who willfully causes the death of an
incapacitated adult or elder person under his or her care, custody
or control by his or her failure or refusal to supply the
incapacitated adult or elder person with necessary food, clothing,
shelter or medical care, is guilty of a felony.
(b) Any caregiver, guardian or custodian of an incapacitated
adult or elder person who causes the death of an incapacitated
adult or elder person under his or her care, custody or control by
knowingly allowing any other person to willfully fail or refuse to
supply the incapacitated adult or elder person with necessary food,
clothing, shelter or medical care, is guilty of a felony.
(c) Any caregiver, guardian or custodian of an incapacitated
adult or elder person who maliciously and intentionally inflicts
upon an incapacitated adult or elder person under his or her care,
custody or control bodily injury by any means other than
accidental, thereby causing the death of the incapacitated adult or
elder person, is guilty of a felony.
(d) A caregiver, guardian or custodian who knowingly allows
any other person to willfully inflict upon an incapacitated adult
or elder person under the care, custody or control of the
caregiver, guardian or custodian bodily injury which thereby causes
the death of the incapacitated adult or elder person, is guilty of a felony.
(e) A person convicted of a felony described in subsections
(a),(b), (c) or (d) of this section shall be punished by a definite
term of imprisonment in a state correctional facility which is not
less than ten nor more than forty years. A person imprisoned
pursuant to the provisions of this section is not eligible for
parole prior to having served a minimum of ten years of his or her
sentence or the minimum period required by the provisions of
section thirteen, article twelve, chapter sixty-two, whichever is
greater.
(f) The provisions of this section do not apply to any
caregiver, guardian, custodian or health care provider who, without
malice fails or refuses, or allows another person to, without
malice, fail or refuse, to supply an incapacitated adult or elder
person with necessary medical care, when the medical care conflicts
with the tenets and practices of a recognized religious
denomination or order of which the incapacitated adult or elder
person is an adherent member or where the failure or refusal is
pursuant to a properly executed do-not-resuscitate form.
§61-2-29b. Neglect of an incapacitated adult or elder person
resulting in death.
(a) A caregiver, guardian or custodian who neglects an
incapacitated adult or elder person under his or her care, custody
or control and by that neglect causes the death of the
incapacitated adult or elder person, is guilty of a felony and,
upon conviction thereof, shall be imprisoned in a state correctional facility for not less than three nor more than fifteen
years.
(b) No incapacitated adult or elder person who, in lieu of
medical treatment, was under treatment solely by spiritual means
through prayer in accordance with a recognized method of religious
healing with a reasonable proven record of success shall, for that
reason alone, be considered to have been neglected within the
provisions of this section. A method of religious healing shall
be presumed to be a recognized method of religious healing if fees
and expenses incurred in connection with the treatment are
permitted to be deducted from taxable income as "medical expenses"
pursuant to regulations promulgated by the United States Internal
Revenue Service.
(c) An incapacitated adult or elder person whose caregiver,
guardian or custodian has inhibited or interfered with the
provision of medical treatment in accordance with a court order may
be considered to have been neglected for the purposes of this
section.
§61-2-29c. Sexual abuse by a caregiver, guardian or custodian.
Any caregiver, guardian or custodian of an incapacitated adult
or elder person who knowingly engages in the sexual exploitation of
an incapacitated adult or elder person under his or her care is
guilty of a felony and, upon conviction thereof shall be imprisoned
in a state correctional facility not less than five years nor more
than fifteen years.
NOTE: The purpose of this bill is to protect incapacitated
persons and the elderly who, reliant upon the care of others, are
extremely vulnerable members of our society from abuse and neglect
by caregivers, guardians or custodians, by more clearly defining
the offense of abuse or neglect of incapacitated adults or elder
persons which result in the death of such persons, to include the
offense of murder.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§§61-2-29a, 29b and 29c; therefore, strike-throughs and
underscoring have been omitted.