COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 736
(By Senator Caruth)
____________
[Originating in the Committee on the Judiciary;
reported February 26, 2008.]
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A BILL to amend and reenact
§37-1-3
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,
all relating
generally to persons under legal disability, including
protected persons
; 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:
That
§
37-1-3
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 IN TRUST.
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
CONSERVATORSHIP ACT.
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 protected person.
: Provided, That the (b) The court may, after first
determining it to be in the best interest of the protected person,
appoint coguardians, coconservators or both: Provided, however,
That the individual is not employed by or affiliated with any
public agency, entity or facility which is providing substantial
services or financial assistance to the protected person.
(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.
(b) (d) Any nonprofit corporation chartered in this state and
licensed as set forth in subsection (c) (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
protected person.
(c) (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
protected person;
(3) Will protect and advocate the legal human rights of the
protected person;
(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
personal liberty;
(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.
(d)(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.
(e) (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.
(f) (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 Any
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.
(g) (i) The Secretary of the Department of Health and Human
Resources shall designate a the adult protective services division
of the county of appointment, or another or agency under his or her
jurisdiction, which may to be appointed to serve as a guardian, but
an appointment may only be made if when there is no other
individual, nonprofit corporation or other public agency that is equally or better qualified and willing to serve: Provided, That
when any sheriff was initially appointed as guardian for the
person, the. The department may not refuse to accept the
guardianship appointment. If the department has been appointed as
conservator, it may petition the circuit court to be released as
conservator, when ordered by the court, but may not be appointed as
conservator.
(h) (j) The sheriff of the county in which a court has assumed
jurisdiction may shall be appointed as a conservator but the
appointment may only be made if when there is no other individual,
nonprofit corporation or other public agency that is equally or
better qualified and willing to serve: Provided, That when the
department of health and human resources was initially appointed as
conservator for the person, the . The sheriff may not refuse to
accept the conservatorship appointment. If the sheriff has been
appointed as guardian, he or she may petition the circuit court to
be released as guardian, 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 six hundred
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
or assets.
(i) Other than a bank or trust company authorized to exercise
trust powers or to engage in trust business in this state, 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.
§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
the court. until thirty days after persons entitled to notice of
hearing of the original petition are notified, and the court has
considered any objections and determined whether additional bond is
required.
(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.
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(NOTE: The purpose of this bill is to generally update
antiquated provisions dealing with the sale of real estate for
persons with legal disabilities, including protected persons, and references §44A-3-5, which requires a conservator to petition the
court or mental hygiene commissioner for the sale of property of a
protected person and appoint counsel or a guardian ad litem. The
bill further clarifies that a conservator may not be appointed when
the
protected person's total assets are worth less than six hundred
dollars, or when the protected person's income is from Social
Security, Medicaid, or less than fifty dollars per month.
§37-1-3 has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.
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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