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Introduced Version House Bill 2788 History

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hb2788 intr
H. B. 2788


(By Delegates Perry, Staggers, Williams, Ennis,
Talbott, Perdue, Frazier, Fragale,

Miley and Caputo)
[Introduced February 24, 2009; referred to the
Committee on Senior Citizen Issues then the Judiciary.]


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 four new sections, designated §61-2-29a, §61-2-29b, §61-2-29c and §61-2-29d, all relating to protecting incapacitated persons and the elderly; defining terms; criminal penalties; and providing enhanced periods of incarceration for the offense of abuse or neglect of incapacitated adults or elder persons which result in the death of such persons.

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 four new sections, designated §61-2-29a, §61-2-29b, §61-2-29c and §61-2-29d, 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 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.
(b) Any A person, caregiver, guardian or custodian who neglects an incapacitated adult or elder person, or who knowingly permits another person to neglect said the adult, is guilty of a misdemeanor felony and, upon conviction thereof, shall be fined not less than $500 nor more than fifteen hundred $5,000, or imprisoned in the county or regional jail a state correctional facility for not less than ninety days one years year nor more than one year 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 person, A 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 person, A 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 This article may not 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) A caregiver, guardian or custodian of an incapacitated adult or elder person who maliciously and intentionally 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 murder in the first degree.
(b) A 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 maliciously and intentionally fail or refuse to supply the incapacitated adult or elder person with necessary food, clothing, shelter or medical care, is guilty, like the other person, of murder in the first degree.
(c) The penalty for offenses defined in this section shall be that which is prescribed for murder in the first degree under the provisions of section two, article two of this chapter.
(d) The provisions of this section do not apply to any caregiver, guardian or custodian who fails or refuses, or allows another person to 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.
§61-2-29b. Death of an incapacitated adult or elder person by abuse by a caregiver, guardian, or custodian.

(a) A 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 substantial physical pain, illness or any impairment of physical condition by any means other than accidental, thereby causing the death of the incapacitated adult or elder person, is guilty of murder in the second degree.
(b) A caregiver, guardian or custodian who knowingly allows any other person to maliciously and intentionally inflict upon an incapacitated adult or elder person under the care, custody or control of the caregiver, guardian or custodian substantial physical pain, illness or any impairment of physical condition by other than accidental means, which thereby causes the death of the incapacitated adult or elder person, is guilty, like the other person, of murder in the second degree.
(c) A person convicted of a felony described in subsection (a) or (b) 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 of this code, whichever is greater.
(d) The provisions of this section do not apply to any caregiver, guardian or custodian or other person 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. The provisions of this section do not apply to any health care provider who fails or refuses, or allows another person to 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.
§61-2-29c. 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 and fined not less than $1,000.
(b) An incapacitated adult or elder person who, in lieu of medical treatment, has agreed to treatment, either personally or by medical power of attorney, solely by spiritual means through prayer in accordance with a recognized method of religious healing with a reasonable proven record of success, for that reason alone, may not 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 or rules 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.
§61-2-29d. Sexual abuse by a caregiver, guardian or custodian.
A caregiver, guardian or custodian of an incapacitated adult or elder person who knowingly procures another person to engage in or attempt to engage in the sexual exploitation of, or in sexual intercourse, sexual intrusion or sexual contact with an incapacitated adult or elder person under the care, custody or control of the caregiver, guardian or custodian, or who knowingly allows another person to engage in the sexual exploitation of, or in sexual intercourse, sexual intrusion or sexual contact with an incapacitated adult or elder person under their care, custody or control, despite the fact that the incapacitated adult or elder person may have suffered no apparent physical injury or mental or emotional injury as a result of the conduct, 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.
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