ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4613
(By Delegates Webster, Walters, Kessler, Caputo, Fleischauer,
Ellem, Brown, Manchin, Shook and Hamilton)
[Passed March 6, 2008; in effect from passage.]
AN ACT 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
settlement transfers.
(a) In addition to the requirements of this article, all
transfer agreements must be approved by the circuit court of the
county wherein the consumer resides or where the structured
settlement agreement was executed when the structured settlement
payment rights arise from a personal injury or other claim.
(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 may appoint a guardian ad litem for the consumer
in all cases, and shall appoint a guardian at litem for the
consumer in any case where the structured settlement payment rights
belong to an infant, an incompetent person or a ward of the court.
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 determine
if transfer has been attempted or accomplished before. The
information shall be reported to the court during the hearing on
the matter.
(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 clearly demonstrated that: (A) He or she, or his or her family is facing a financial hardship that the
transfer would alleviate and that the transfer would not subject
the consumer or the consumer's family to undue financial hardship
in the future; or (B) the transfer is in the best interest of the
consumer:
Provided, That the judge shall 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. Attorneys' 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
and shall be responsible for attorney's fees or guardian ad litem
fees.
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