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Enrolled Version - Final Version House Bill 3170 History

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hb3170 ENR
ENROLLED

H. B. 3170


(By Delegates Webster, Wooton, Shook, Fleischauer,
Miley, Manchin, Ellem, Frazier, Lane and Shott)


[Passed April 11, 2009; in effect ninety days from passage.]



AN ACT to amend and reenact §44A-1-7, §44A-1-9, §44A-1-10 and §44A-1-14 of the Code of West Virginia, 1931, as amended; to amend and reenact §44A-2-1, §44A-2-5, §44A-2-6, §44A-2-7, §44A-2-12, §44A-2-13, §44A-2-13a, §44A-2-14 and §44A-2-15 of said code; to amend and reenact §44A-3-11 of said code; and to amend and reenact §44A-4-1 and §44A-4-5 of said code, all relating to the West Virginia Guardianship and Conservatorship Act; clarifying the filing and review of the periodic accounting of conservators of incapacitated persons generally; clarifying transfer of venue; clarifying the posting of bond by conservators; authorizing the West Virginia Supreme Court of Appeals to coordinate education program and update materials and forms; expanding temporary protective orders to include freezing accounts and producing records; increasing filing fee for guardianship and conservatorship; transferring certain funds to the Supreme Court of Appeals; using additional fee for review of reports and accountings by fiduciary commissioner or other person; clarifying who can access case files; clarifying who is responsible for proper service; clarifying duties and fees of appointed counsel; clarifying when limited conservatorship is needed; clarifying orders of the court and time of entry; authorizing appointment of fiduciary commissioner or other person to review reports; creating a notice of appointment to be filed with the clerk of the county commission; increasing temporary guardianships and conservatorships to six months; clarifying procedure for subsequent petitions; clarifying time frame for reports and accountings; increasing penalties for failure to file reports and accountings; reporting elder abuse; clarifying when appointments terminate; clarifying duties of guardian and conservator subsequent to death of protected person; and making technical corrections.

Be it enacted by the Legislature of West Virginia:
That §44A-1-7, §44A-1-9, §44A-1-10 and §44A-1-14 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §44A-2-1, §44A-2-5, §44A-2-6, §44A-2-7, §44A-2-12, §44A-2-13, §44A-2-13a, §44A-2-14 and §44A-2-15 of said code be amended and reenacted; that §44A-3-11 of said code be amended and reenacted; and that §44A-4-1 and §44A-4-5 of said code be amended and reenacted, all to read as follows:
CHAPTER 44A. WEST VIRGINIA GUARDIANSHIP AND CONSERVATORSHIP ACT.

ARTICLE 1. DEFINITIONS AND GENERAL PROVISIONS.

§44A-1-7. Transfer of venue following appointment.

(a) Following the appointment of a full or limited guardian or conservator or committee, the court with jurisdiction over the proceeding may order the transfer of jurisdiction to another circuit court in this state or to an appropriate tribunal in another state if it appears to the court that the interests of the protected person will be best served by such transfer. Transfer of jurisdiction to another state shall be in accordance with the provisions of chapter forty-four-c of this code.
(b) Upon the transfer, the previously appointed guardian or conservator shall report to the county of transfer that is assuming jurisdiction Any changes to the appointments shall be made by the court assuming jurisdiction.
§44A-1-9. Posting of bonds; actions on bond.
(a) The court has the discretion to determine whether the posting of a bond by a guardian, once appointed, is necessary. No bond is required of any sheriff or representative of the Department of Health and Human Resources appointed as conservator or guardian, respectively.
(b) The court shall order the posting of a bond by a conservator prior to appointment except where the conservator is excused from posting bond under the provisions of section eighteen, article four, chapter thirty-one-a of this code. In determining the amount or type of a conservator's bond, the court or mental hygiene commissioner shall consider:
(1) The value of the personal estate and annual gross income and other receipts within the conservator's control;
(2) The extent to which the estate has been deposited under an arrangement requiring an order of court for its removal;
(3) Whether an order has been entered waiving the requirement that accountings be filed and presented or permitting accountings to be presented less frequently than annually;
(4) The extent to which the income and receipts are payable directly to a facility responsible for or which has assumed responsibility for the care or custody of the protected person;
(5) The extent to which the income and receipts are derived from state or federal programs that require periodic accountings;
(6) Whether a guardian has been appointed, and if so, whether the guardian has presented reports as required; and
(7) Whether the conservator was appointed pursuant to a nomination which requested that bond be waived.
(c) Any required bond may be with a surety and in an amount and form as the court may order and the court may order additional bond or reduce the bond whenever the court finds that a modification is in the best interests of the protected person or of the estate. The court may allow a property bond in lieu of a cash bond. Proof of bonding must be submitted to the court within thirty days of entry of the order regarding bond.
(d) In case of a breach of any condition placed on the bond of any guardian or conservator, an action may be instituted by any interested person for the use and benefit of the protected person, for the estate of the protected person or for the beneficiaries of the estate.
(e) The following requirements and provisions apply to any bond which the court may require under this section:
(1) Sureties are jointly and severally liable with the guardian or conservator and with each other;
(2) By executing an approved bond of a guardian or conservator, the surety consents to the jurisdiction of the court in any proceeding pertaining to the fiduciary duties of the conservator and naming the surety as a party respondent. Notice of any proceeding must be delivered to the surety or mailed by registered or certified mail to the address of the surety listed with the court in which the bond is filed. If the party initiating a proceeding possesses information regarding the address of a surety which would appear to be more current than the address listed with the court, notice shall also be mailed by registered or certified mail to the last address of the surety known to the party initiating the proceeding;
(3) On petition of a successor guardian or conservator or any interested person, a proceeding may be initiated against a surety for breach of the obligation of the bond of the preceding guardian or conservator; and
(4) The bond of the guardian or conservator is not void after any recovery but may be proceeded against from time to time until the whole penalty is exhausted.
(f) No proceeding may be commenced against the surety on any matter as to which an action or proceeding against the guardian or conservator is barred by adjudication or limitation.
§44A-1-10. Mandatory education; written material; and forms.
(a) Any individual appointed to serve as a guardian or conservator must receive educational material or complete mandated educational training, unless the court enters an order stating that the individual does not require the mandated educational training because he or she has completed the mandated educational training within the last three years.
(b) Upon a determination that the individual who is the subject of proceedings under this chapter is a protected person, as defined in section four of this article, the required educational training must be completed within thirty days of the court's determination. Upon completion, the appointed guardian or conservator shall provide an affidavit to the court, certifying that the educational training has been completed, and the court shall forthwith issue the order of appointment in accordance with the provisions of section thirteen, article two of this chapter.
(c) The West Virginia Supreme Court of Appeals shall coordinate the education program for guardians and conservators, shall update the program materials and requisite forms at least every two years and shall also propose legislative rules for promulgation, in accordance with the provisions of chapter twenty-nine-a of this code, regarding mandatory educational training for guardians and conservators. The educational training may include the following:
(1) Written materials;
(2) Recorded information, whether audio, visual or both; or
(3) A combination of the above.
§44A-1-14. Temporary protective orders.
The court or mental hygiene commissioner may, at the request of a petitioner or upon its own motion, issue temporary protective orders freezing bank or investment accounts, ordering the production of records and otherwise prohibiting or limiting the expenditure, sale or other legal transfer of any assets of the alleged protected person until a final order is entered revoking the protective orders.
ARTICLE 2. PROCEDURE FOR APPOINTMENT.
§44A-2-1. Filing of petition; jurisdiction; fees; special revenue account established; duties of Auditor.

(a) A petition for the appointment of a guardian or conservator shall be filed with the clerk of the circuit court in the county in which the alleged protected person resides or, if an alleged protected person has been admitted to a health care or correctional facility, in the county in which that facility is located. A petition for the appointment of a conservator for a missing person shall be filed with the clerk of the circuit court in the county in which the missing person last resided. The circuit clerk is not required to accept for filing a petition that is not administratively complete.
(b) The circuit court in which the proceeding is first commenced shall have exclusive jurisdiction unless that court determines that a transfer of venue would be in the best interests of the person alleged to need protection.
(c) The fee for filing a petition shall be $110 payable upon filing to the circuit clerk, $75 of which shall be retained by the circuit clerk and $35 of which shall be remitted by the circuit clerk to the special revenue account in the State Treasury created in subsection (e) of this section.
(d) The person bringing the petition shall be responsible for fees for filing the petition and other papers, for service of process, and for copies of court documents and transcripts. In the event that a guardian, conservator, or both, is appointed by the court, such fees shall be reimbursed to the individual who filed the petition from the protected person's estate, if funds are available. Any person who is pecuniarily unable to pay the fees and costs as set forth in article one, chapter fifty-nine of this code and article two, chapter fifty-one of this code will not be required to pay the fees and costs.
(e) There is hereby created in the State Treasury a special revenue account, which shall be an interest-bearing account, to be known as the Enforcement of Guardianship and Conservatorship Act Fund.
(f) The reports of guardians and inventory and accountings of conservators required by this chapter shall be examined semi- annually by the, fiduciary commissioner or other person appointed by the court in accordance with section eleven, article three of this chapter.
(g) The special revenue account known as the Enforcement of Guardianship and Conservatorship Act Fund, previously administered by the State Auditor, shall, on and after the amendment and reenactment of this section, be administered by the West Virginia Supreme Court of Appeals. All moneys previously collected for deposit into the fund pursuant to this chapter and not expended in accordance with this chapter shall be transferred to the West Virginia Supreme Court of Appeals. All collections shall be deposited and used for payment of fiduciary commissioner or other person appointed by the court for review of the reports required by section eleven, article three of this chapter and the education program required by section ten, article one of this chapter.
§44A-2-5. Confidentiality.
Upon filing of a petition requesting appointment of a guardian or conservator, all pleadings, exhibits and other documents contained in the court file shall be considered confidential and not open for public inspection, either during the pendency of the case or after the case is closed. The protected person, and his or her attorney, may inspect or copy the file. Another party may file a petition stating the reasons for inspecting or copying the file and, upon good cause shown, the court or mental hygiene commissioner may authorize the party, or his or her attorney, to inspect and copy the file.
§44A-2-6. Notice of hearing.
(a) Upon the filing of the petition and evaluation report, the court shall promptly issue a notice fixing the date, hour and location for a hearing to take place within sixty days.
(b) The alleged protected person shall be personally served with the notice, a copy of the petition and the evaluation report not less than fourteen days before the hearing. The person may not waive notice and a failure to properly notify the person shall be jurisdictional.
(c) A copy of the notice, together with a copy of the petition, shall be mailed by certified mail, return receipt requested, by the petitioner, at least fourteen days before the hearing to all individuals seven years of age or older and to all entities whose names and post office addresses appear in the petition. In the case of a missing person, a copy of the petition for the appointment of a conservator shall be mailed by certified mail, return receipt requested, by the petitioner, at least fourteen days before the hearing to the last known address of the missing person. A copy of certified mail return receipts shall be filed in the office of the circuit clerk on or before the date of hearing. It is the responsibility of the petitioner to obtain proper service and file the appropriate documentation with the circuit clerk before the hearing.
(d) The notice shall include a brief statement in large print of the purpose of the proceedings and shall inform the alleged protected person of the right to appear at the hearing, the right to an attorney and the right to object to the proposed appointment. Additionally, the notice shall include the following statement in large print:
POSSIBLE CONSEQUENCES OF A COURT FINDING

THAT YOU ARE INCAPACITATED

At the hearing you may lose many of your rights. A guardian may be appointed to make personal decisions for you. A conservator may be appointed to make decisions concerning your property and finances. The appointment may affect control of how you spend your money, how your property is managed and controlled, who makes your medical decisions, where you live, whether you are allowed to vote and other important rights.
(e) No person may be appointed a guardian or conservator without first receiving proper notice and having the opportunity to be present at a hearing.
§44A-2-7. Appointment of counsel.
(a) The court shall appoint legal counsel for the alleged protected person to make recommendations to the court that are in the best interests of the alleged protected person. In appointing legal counsel, the court shall consider any known preferences of the alleged protected person, or an alleged protected person may hire and pay for an attorney of his or her choice.
(b) Legal counsel shall have the following major areas of concern: (1) Whether or not a guardian or conservator is needed; (2) limitation of the role of the guardian or conservator to the protected person's specific needs -- e.g., personal supervisor, business affairs, medical consent only; (3) if needed, assure that the person or entity that will act in the best interest of the protected person is appointed; (4) if needed, assure the adequacy of the bond; and (5) if needed, assure consideration of proper placement.
(c) In responsibly pursuing the major areas of concern set forth in subsection (b) of this section, counsel may perform any or all of the following: (1) Promptly notify the individual and any caretaker of the appointment of counsel; (2) contact any caretaker, review the file and all other relevant information; (3) maintain contact with the client throughout the case and assure that the client is receiving services as are appropriate to the client's needs; (4) contact persons who have or may have knowledge of the client; (5) interview all possible witnesses; (6) pursue discovery of evidence, formal and informal, including obtaining medical and financial records; (7) file appropriate motions, including temporary protective orders; (8) obtain independent psychological examinations, medical examinations, home studies, as needed; (9) advise the client on the ramifications of the proceeding and inquire into the specific interests and desires of the individual; (10) subpoena witnesses to the hearing; (11) prepare testimony for cross-examination of witnesses to assure relevant material is introduced; (12) review all medical reports; (13) apprise the decision maker of the individual's desires; (14) produce evidence on all relevant issues; (15) interpose objections to inadmissible testimony; (16) raise appropriate questions to all nominations for guardian and conservator and the adequacy of the bond; (17) take all steps to limit the scope of guardianship and conservatorship to the individual's actual needs, and make all arguments to limit the amount of the intervention; (18) ensure that the court considers all issues as to the propriety of the individual's current or intended housing or placement and that the limitations are set forth in the order; (19) inform the client of the right to appeal, and file an appeal to an order when appropriate; (20) file a motion for modification of an order or a petition for a writ of habeas corpus if a change of circumstances occurs which warrants a modification or termination upon counsel being reappointed by the court; and (21) otherwise zealously represent the interests and desires of the client while also reporting to the court what actions are in the best interests of the client.
(d) The protected person shall have the right to an independent expert of his or her choice to perform an evaluation and present evidence.
(e) A person appointed by the court as counsel for a nonindigent alleged protected person shall inform the court or the mental hygiene commissioner of his or her hourly rate at the onset of the case and seek approval of his or her fee for the case by submitting it to the court or the mental hygiene commissioner for approval using forms provided by the West Virginia Supreme Court of Appeals. The hourly rate and fee for the case must be reasonable in light of the going rate for legal services, the complexity of the matter and the amount of legal work involved. The court may set the fee at the time of appointment.
§44A-2-12. Limited conservatorships.
A limited conservator may be appointed for an individual deemed to be a protected person in need of a conservator within the meaning of section four, article one of this chapter, but whose property or financial affairs are so limited that there is only one or more designated contexts for which a limitation of the individual's legal rights is warranted.
§44A-2-13. Order of appointment; notice; notice of appointment.
(a) An order appointing a guardian or conservator may only be issued by the court upon the following:
(1) The guardian or conservator has subscribed to and filed an oath promising to faithfully perform the duties of the office in accordance with all provisions of this chapter;
(2) Posting of any bond, if required; and
(3) The completion of mandatory education, as required under the provisions of section ten, article one of this chapter, unless the court enters an order stating that an individual does not require educational training because he or she has completed the mandatory education within the last three years.
(b) In addition to the findings of fact and conclusions of law required in section nine of this article, the order shall include the specific areas of protection or assistance granted in the case of a guardian and the specific areas of management and assistance granted in the case of a conservator and address other areas of concern pursuant to the circumstances of the case.
(c) Within fourteen days following the entry of an order of appointment, the guardian or conservator shall mail a copy of the order of appointment, together with a brief statement in large print of rights to seek an appeal for modification or termination, to the protected person and to all individuals and entities given notice of the petition.
(d) Within ten days following the entry of an order of appointment, the circuit clerk shall mail a notice of appointment for recordation in the office of the clerk of the county commission to be recorded with the records of deeds and records of powers of attorneys, and listed in the appropriate indexes under the name of the protected person stating the case name and number, the name of the protected person, and the names of the guardian and conservator so that persons are put on notice of the existence of a guardianship or conservatorship.
§44A-2-13a. Time of entry of orders.
The mental hygiene commissioner or the court shall prepare an order within fourteen days of the hearing directing the appointees to complete the mandatory education and post any required bond within thirty days of the hearing. After the mandatory education is completed and the bond posted, then the court shall enter a final order on the petition within fourteen days.
§44A-2-14. Temporary guardians and conservators.
(a) The court may appoint a temporary guardian or temporary conservator, or both, under this section upon a finding that an immediate need exists, that adherence to the procedures otherwise set forth in this chapter for the appointment of a guardian or conservator may result in significant harm to a person or the estate, and that no other individual or entity appears to have authority to act on behalf of the person, or that the individual or entity with authority to act is unwilling, or has ineffectively or improperly exercised the authority.
(b) A temporary guardian or temporary conservator shall have only those powers and duties that are specifically set forth in the order of appointment. The appointment of a temporary guardian or temporary conservator shall expire within six months unless it is terminated or extended for up to six months by the court or mental hygiene commissioner for good cause shown following a hearing.
(c) An appointment of a temporary guardian or temporary conservator shall be made upon timely and adequate notice to the protected person after appointment or notice of appearance of counsel and after all other protections have been afforded, in accordance with due process of law, including any other conditions as the court may order. The protected person may petition the court for a substitution of a temporary guardian or temporary conservator at any time.
(d) Within five days following the entry of an order of appointment, a temporary guardian or temporary conservator shall mail a copy of the order of appointment, together with a brief statement in large print of rights to seek an appeal for modification or termination, to the person for whom the appointment was made and to all individuals and entities that would be entitled to notice of hearing on a petition for appointment as set forth in section six of this article.
§44A-2-15. Notice of hearing on petitions subsequent to the appointment of a guardian or conservator.

(a) Except as otherwise provided herein or as ordered by the court for good cause shown, notice of hearing on a petition for an order subsequent to the appointment of a guardian or conservator shall be personally served upon the protected person and mailed to an appointed counsel or attorney of record, to those individuals who would be entitled to notice of the filing of an original petition to appoint, to any facility that is responsible for the care and custody of the protected person, to the guardian or conservator, if the guardian or conservator is not the petitioner, and to other individuals or entities as the court may order.
(b) Unless otherwise ordered by the court, the notice shall be personally served upon the protected person and mailed by the petitioner by certified mail return receipt requested to other parties entitled to notice at least fourteen days prior to the hearing and shall be accompanied by a copy of the petition and other relevant documents. A copy of the certified mail return receipts shall be filed in the office of the circuit clerk on or before the date of the hearing.
(c) The court or mental hygiene commissioner may conduct hearings on subsequent petitions filed pursuant to this chapter.
ARTICLE 3. GUARDIANSHIP AND CONSERVATORSHIP ADMINISTRATION.
§44A-3-11. Filing of reports and accountings; misdemeanor for failure to file; reporting elder abuse.

(a) Reports of guardians and accountings of conservators, as described in this article shall be filed with the circuit clerk of the county in which appointed and also with the fiduciary commissioner of the county or other person if the court has made a referral in its order:
(1) Within six months of being appointed;
(2) By December 31 of each year thereafter;
(3) When the court orders additional reports or accountings to be filed;
(4) When the guardian or conservator resigns or is removed; and
(5) When the appointment of the guardian or conservator is terminated, except that in the case of a guardian, the court may determine that there is no need for a report upon the termination; and in the case of a conservator, no accounting is required if all persons entitled to any proceeds of the estate consent thereto.
(b) The circuit clerk shall notify the court if the required reports are not filed or are administratively incomplete. The fiduciary commissioner, or other person appointed by the court or mental hygiene commissioner, shall review the reports and accountings semi-annually, and may request additional information from the guardian or conservator. If the reports or accountings are not filed, or if there are any questions or discrepancies in the reports or accountings, the person reviewing the report shall notify the court or mental hygiene commissioner for further investigation or action of the court, including but not limited to, a court order requesting copies of bank or investment records, appointing counsel to investigate the matter or setting a hearing on the matter.
(c) If the court has in its order made a referral to the fiduciary commissioner of the county:
(1) The accounting shall be governed by and the fiduciary commissioner shall handle the same under the provisions of sections ten, eleven, twelve, thirteen and fourteen, article four, chapter forty-four of this code, except that all compensation and expenses of the conservator shall be allowed and approved only by the circuit court in accordance with the provisions of section thirteen, article one of this chapter.
(2) The fiduciary commissioner may not publish any notice concerning the filing of a proposed accounting, but shall serve a copy of the proposed accounting of the conservator together with the notice by United States mail on the protected person, all individuals and entities given notice of the petition and any other person or entity found to be interested in the affairs of the protected person, all of whom have standing to file exceptions to or falsify the accounting before the fiduciary commissioner.
(3) In the settlement of the accounting of a conservator, the fiduciary commissioner is entitled to fees as are allowed for fiduciary commissioners in the handling of accountings of a decedent's estate, or as otherwise set by order of the circuit court.
(4) If the court or mental hygiene commissioner appoints a person other than the fiduciary commissioner to review the reports, such person shall report to the court as required by this article. The court shall establish a fee for reviewing a report which shall be paid by the Supreme Court of Appeals from the Enforcement of Guardianship and Conservatorship Act Fund.
(5) Any party feeling aggrieved of a settlement or decision by the fiduciary commissioner concerning the accounting may on motion filed within four months of the settlement or decision appeal the same to the circuit court.

(d) Any guardian or conservator who knowingly violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500.
(e) The parties, attorneys or mental hygiene commissioner shall report violations of this section, or any other alleged elder abuse violations, including criminal elder abuse pursuant to section twenty-nine, article two, chapter sixty-one of this code, to the Department of Health and Human Resources or county prosecutor for further investigation and action.
(f) The West Virginia Supreme Court of Appeals shall prescribe forms for reports, accountings and inventories required to be filed pursuant to the provisions of this article.
ARTICLE 4. TERMINATION, REVOCATION AND MODIFICATION OF APPOINTMENTS.

§44A-4-1. Termination of appointment of guardian or conservator.
(a) The appointment of a guardian or conservator shall terminate upon the death, resignation or removal of the guardian or conservator.
(b) The appointment further terminates upon the death of the protected person. The guardian or conservator shall file the certified death certificate of the protected person with the circuit clerk with a final report or accounting.
(c) A guardianship or conservatorship shall terminate whenever jurisdiction is transferred to another state or if ordered by the court following a hearing on the petition of any interested person.
(d) In the case of a missing person, a conservatorship shall terminate when the missing person is located or when the person's death is established by the production of a certified death certificate, or the person is presumed dead pursuant to the provisions of article nine, chapter forty-four of this code.
(e) The court or the mental hygiene commissioner shall prepare a termination order dismissing the guardianship or conservatorship case and discharging any bond posted by the guardian or conservator.
(f) A termination of an appointment does not affect the liability of a guardian or conservator for prior acts or the responsibility of a conservator to account for the estate of the protected person.
§44A-4-5. Duty of guardian or conservator subsequent to death of protected person.

In the absence of an advanced directive, such as a will, living will or power of attorney, or preneed burial or cremation contract, after the death of the protected person, a guardian or a conservator, if there is no guardian, shall continue to have authority to make decisions regarding the body of the deceased protected person for the purposes of authorizing an autopsy and making funeral arrangements. The guardian's or conservator's authority shall continue until an executor or executrix or an administrator or administratrix has been appointed.



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