Enrolled Version - Final Version
Senate Bill 736 History
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Enrolled Version - Final Version (2)
SB736 SUB1 enr
Senate Bill No. 736
(Senator Caruth, original sponsor)
[Passed March 8, 2008; in effect ninety days from passage.]
AN ACT to amend and reenact
of the Code of West Virginia,
1931, as amended
to amend and reenact §44A-1-8
of said code;
and to amend and reenact
§44A-3-5 of said code,
generally to persons under legal disability, including
; clarifying the sale of real estate for
persons under legal disability, including protected persons
clarifying when a conservator appointment is exempted; and
making technical corrections.
Be it enacted by the Legislature of West Virginia:
of the Code of West Virginia, 1931, as amended
be amended and reenacted; that §44A-1-8 of said code be amended and
reenacted; and that
§44A-3-5 of said code be amended and reenacted
all to read as follows:
CHAPTER 37. REAL PROPERTY.
ARTICLE 1. LANDS OF PERSONS WITH LEGAL DISABILITY, AND LANDS HELD
§37-1-3. Guardian ad litem.
A guardian ad litem shall be appointed for minors under the
age of eighteen, inmates and protected persons subject to the
requirements of section five, article three, chapter forty-four-a
of this code. The guardian ad litem shall answer the petition
under oath, be present at any summary proceeding or hearing and
inform the court whether the sale of property is in the best
interests of the minor, inmate or protected person. Minors over
the age of fourteen may answer in person as well.
CHAPTER 44A. WEST VIRGINIA GUARDIANSHIP AND
ARTICLE 1. DEFINITIONS AND GENERAL PROVISIONS.
§44A-1-8. Persons and entities qualified to serve as guardian and
conservator; default guardian and conservator;
exemptions from conservator appointment.
(a) Any adult individual may be appointed to serve as a
guardian, a conservator or both upon a showing by the individual of
the necessary education, ability and background to perform the
duties of guardian or conservator and upon a determination by the
court that the individual is capable of providing an active and
suitable program of guardianship or conservatorship for the
protected person. The individual may not be employed by or
affiliated with any public agency, entity or facility that is
providing substantial services or financial assistance to the
(b) The court may, after first determining it to be in the
best interest of the protected person, appoint coguardians,
coconservators or both.
(c) Any person being considered by a court for appointment as
a guardian or conservator shall provide information regarding any
crime, other than traffic offenses, of which he or she was
convicted and the court or mental hygiene commissioner may order a
background check to be conducted by the state police or county
sheriff. The court shall consider this information in determining
the person's fitness to be appointed a guardian or conservator.
(d) Any nonprofit corporation chartered in this state and
licensed as set forth in subsection (e) of this section or a public
agency that is not a provider of health care services to the
protected person may be appointed to serve as a guardian, a
conservator or both: Provided, That the entity is capable of
providing an active and suitable program of guardianship or
conservatorship for the protected person and is not otherwise
providing substantial services or financial assistance to the
(e) A nonprofit corporation chartered in this state may be
appointed to serve as a guardian or conservator or as a limited or
temporary guardian or conservator for a protected person if it is
licensed to do so by the Secretary of Health and Human Resources.
The secretary shall propose legislative rules, for promulgation in
accordance with the provisions of chapter twenty-nine-a of this
code, for the licensure of nonprofit corporations and shall provide for the review of the licenses. The rules shall, at a minimum,
establish standards to assure that any corporation licensed for
guardianship or conservatorship:
(1) Has sufficient fiscal and administrative resources to
perform the fiduciary duties and make the reports and accountings
required by this chapter;
(2) Will respect and maintain the dignity and privacy of the
(3) Will protect and advocate the legal human rights of the
(4) Will assure that the protected person is receiving
appropriate educational, vocational, residential and medical
services in the setting least restrictive of the individual's
(5) Will encourage the protected person to participate to the
maximum extent of his or her abilities in all decisions affecting
him or her and to act in his or her own behalf on all matters in
which he or she is able to do so;
(6) Does not provide educational, vocational, residential or
medical services to the protected person; and
(7) Has written provisions in effect for the distribution of
assets and for the appointment of temporary guardians and
conservators for any protected persons it serves in the event the
corporation ceases to be licensed by the Department of Health and
Human Resources or otherwise becomes unable to serve as guardian.
(f) A duly licensed nonprofit corporation that has been appointed to serve as a guardian or as a conservator pursuant to
the provisions of this article is entitled to compensation in
accordance with the provisions of section thirteen of this article.
(g) Except as provided in section thirteen of this article, no
guardian or conservator nor any officer, agent, director, servant
or employee of any guardian or conservator may do business with or
in any way profit, either directly or indirectly, from the estate
or income of any protected person for whom services are being
performed by the guardian or conservator.
(h) A person who has an interest as a creditor of a protected
person is not eligible for appointment as either a guardian or
conservator of the protected person, except that a bank or trust
company authorized to exercise trust powers or to engage in trust
business in this state may be appointed as a conservator if the
court determines it is capable of providing suitable
conservatorship for the protected person.
(i) The Secretary of the Department of Health and Human
Resources shall designate the adult protective services division of
the county of appointment, or another agency under his or her
jurisdiction, to be appointed as guardian when there is no other
individual, nonprofit corporation or other public agency that is
equally or better qualified and willing to serve. The department
may not refuse to accept the guardianship appointment when ordered
by the court, but may not be appointed as conservator.
(j) The sheriff of the county in which a court has
jurisdiction shall be appointed as conservator when there is no other individual, nonprofit corporation or other public agency that
is equally or better qualified and willing to serve . The sheriff
may not refuse to accept the conservatorship appointment when
ordered by the court, but may not be appointed as guardian.
(k) A conservator shall not be appointed when the alleged
protected person's total assets are worth less than two thousand
dollars or the alleged protected person's income is: (1) From the
Social Security Administration and a representative payee has been
appointed to act in the best interest of the individual; (2) from
Medicaid and the only income distributed to the individual is the
personal account allotment; or (3) less than fifty dollars per
month or six hundred dollars per year.
In these instances, the
guardian, representative payee or health care facility, if there is
no other person or entity, shall manage the personal care account
ARTICLE 3. GUARDIANSHIP AND CONSERVATORSHIP ADMINISTRATION.
§44A-3-5. Sale or mortgage of real estate.
(a) A conservator shall not sell real estate and shall
not be authorized to mortgage any real estate without approval of
(b) Following a petition by the conservator for the sale
or mortgage of real property, the court or mental hygiene
commissioner shall appoint a guardian ad litem and set a hearing on
the petition. The conservator shall personally serve the protected
person and serve by certified mail all persons entitled to notice
pursuant to the original petition at least thirty days prior to the hearing.