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Introduced Version Senate Bill 664 History

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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 664

(By Senator Palumbo)

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[Introduced February 22, 2010; referred to the Committee on the Judiciary.]

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A BILL to amend and reenact §44A-3-1 and §44A-3-2 of the Code of West Virginia, 1931, as amended, all relating to the duties and reports of the guardian; requiring the guardian to act as a fiduciary in the best interests of the protected person; requiring the guardian to address social activities of protected person; permitting petition of interested party; permitting court or Mental Hygiene Commissioner to order guardian to take appropriate actions; and requiring guardian to report on social activities of protected person.

Be it enacted by the Legislature of West Virginia:

That §44A-3-1 and §44A-3-2 of the Code of West Virginia, 1931, as amended, be amended, all to read as follows:

ARTICLE 3. GUARDIANSHIP AND CONSERVATORSHIP ADMINISTRATION.
§44A-3-1. Duties of guardian of protected person.
A (a) The guardian of a protected person shall act in a fiduciary capacity and is be responsible for obtaining provision for and making decisions with respect to the protected person's support, care, health, habilitation, education, therapeutic treatment, social activities and visits with friends and family, and, if not inconsistent with an order of commitment or custody, to determine the protected person's residence.
(b) A guardian shall maintain sufficient contact of not less than once very six months with the protected person to know of the protected person's capabilities, limitations, needs, and opportunities. and such contact shall not be less frequent than one visit every six months.
(c) A guardian shall be required to seek prior court authorization to change the protected person's residence to another state, to terminate or consent to a termination of the protected person's parental rights, to initiate a change in the protected person's marital status, to deviate from a protected person's living will or medical power of attorney, or to revoke or amend a durable power of attorney executed by the protected person.
(d) A guardian shall exercise authority only to the extent necessitated by the protected person's limitations, and, where feasible, shall encourage the protected person to participate in decisions, to act on his or her own behalf, and to develop or regain the capacity to manage personal affairs.
(e) A guardian shall, to the extent known, consider the express desires and personal values of the protected person when making decisions, and shall otherwise act in the protected person's best interests and exercise reasonable care, diligence, and prudence.
(f) Upon the petition of an interested party or upon its own motion, the court or Mental Hygiene Commissioner may order the guardian to take appropriate action to address the needs and best interests of the protected person as required by this section.
§44A-3-2. Reports by guardian of protected person.
(a) Any guardian appointed pursuant to the provisions of this chapter shall file periodic reports, in accordance with section eleven of this article including:
(a) The guardian's report shall include:
(1) A description of the current mental, physical, and social condition of the protected person;
(2) A description of the protected person's living arrangements during the reported period;
(3) The medical, educational, vocational, and other professional services provided to the protected person and the guardian's opinion as to the adequacy of the protected person's care;
(4) A summary of the guardian's visits with the protected person, the protected person's visits with friends and family, and the social activities on behalf of the protected person;
(5) A statement of whether the guardian agrees with the current treatment or habilitation plan;
(6) A recommendation as to the need for continued guardianship and any recommended changes in the scope of the guardianship;
(7) Any other information requested by the court or useful in the opinion of the guardian;
(8) The compensation requested and the reasonable and necessary expenses incurred by the guardian; and
(9) A verification signed by the guardian stating that all of the information contained in the report is true and correct to the best of his or her knowledge.
(b) The court may order the guardian to attend a hearing on the report by motion of the court or Mental Hygiene Commissioner, or upon the petition of any interested person. A report of the guardian may be incorporated into and made a part of the accounting of the conservator.

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(NOTE: The purpose of this bill is to more specifically address the social needs of the protected person with regard to visits with friends and family. It requires the guardian to arrange for, and report on, social activities and visits with friends or family, and allows the court or Mental Hygiene Commissioner to intervene and order otherwise if the guardian's actions are not within the best interests of the protected person.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
)
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