H. B. 3198

         (By Delegates Hamilton, Williams, Rowan,

                          Moye, Duke and Boggs)

         [Introduced February 18, 2011; referred to the

         Committee on the Judiciary then Finance.]

A BILL to amend and reenact §61-2-29 of the Code of West Virginia, 1931, as amended, relating to abuse or neglect of an incapacitated adult; providing for forfeiture of inheritance upon taking the life or committing felony abuse of decedent; and establishing the Elder and Vulnerable Adult Victims Trust Fund.

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 to read as follows:

ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-29. Abuse or neglect of incapacitated adult; definitions; penalties; forfeiture of inheritance upon felony abuse of decedent; Elder and Vulnerable Adult Victims Trust Fund established.

    (a) The following words, when used in this section and sections twenty -nine-a and twenty-nine-b of this article, have the meaning ascribed, unless the context clearly indicates otherwise:

    (1) "Abuse" means the intentional infliction of bodily injury on an incapacitated adult;

    (2) “Bodily injury” means substantial physical pain, illness or any impairment of physical condition;

    (3) "Caregiver" means any person who has assumed the legal responsibility or a contractual obligation for the care of an incapacitated adult, or has voluntarily assumed responsibility for the care of an incapacitated adult. The term includes a facility operated by any public or private agency, organization or institution which provides services to, and has assumed responsibility for the care of an incapacitated adult.

    (4)"Incapacitated adult" means any person eighteen years of age or older who by reason of advanced age, physical, mental or other infirmity is unable to carry on the daily activities of life necessary to sustaining life and reasonable health;

    (5) “Neglect” means the unreasonable failure by a caregiver to provide the care necessary to assure the physical safety or health of an incapacitated adult; and

    (6) "Serious bodily injury" means bodily injury which creates a substantial risk of death, which causes serious or prolonged disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ.

    (b) A caregiver who neglects an incapacitated adult or who knowingly permits another person to neglect an incapacitated adult is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500 or confined in jail for not more than one year, or both fined and confined.

    (c) A caregiver who abuses an incapacitated adult or who knowingly permits another person to abuse an incapacitated adult is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500 or confined in jail for not less than ninety days nor more than one year, or both fined and confined.

    (d) A caregiver of an incapacitated adult who intentionally and maliciously abuses or neglects an incapacitated adult and causes the incapacitated adult bodily injury is guilty of a felony and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000 and imprisoned in a state correctional facility not less than two years nor more than ten years.

    (e) A caregiver of an incapacitated adult who intentionally and maliciously abuses or neglects an incapacitated adult and causes the incapacitated adult serious bodily injury is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000 and imprisoned in a state correctional facility not less than three years nor more than fifteen years.

    (f) Nothing in this section or in section twenty-nine-a of this article shall 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.

    (g) Nothing in this section or in section twenty-nine-a of this article shall be construed to mean an incapacitated adult is abused or neglected if deprivation of life-sustaining treatment or other act has been provided for by the West Virginia Health Care Decisions Act, pursuant to article thirty, chapter sixteen of this code.

    (h) If the husband, wife, heir-at-law, beneficiary under a will, joint tenant with the right of survivorship or the beneficiary under any insurance policy takes the life of the decedent incapacitated adult, or victimizes the decedent incapacitated adult by the commission of any felony under this section, or section twenty-nine-a or section twenty-nine-b of this article, and is convicted of such felony, the person so convicted forfeits all interest in and to the property of the decedent, including any interest he or she would receive as surviving joint tenant, and the property interest or insurable interest so forfeited descends to the decedent's other heirs-at-law, beneficiaries, or joint tenants, unless otherwise disposed of by the decedent. If there are no other heirs-at-law, beneficiaries, or joint tenants of the decedent as to all or part of the interest forfeited, the forfeited interest shall escheat to the state. The State Treasurer shall, after liquidation of the interest, pay the proceeds into the Elder and Vulnerable Adult Victims Trust Fund Established in subsection (i) of this section.

    (i) The Elder and Vulnerable Victims Trust Fund is created as a special revenue fund in the Office of the State Treasurer.

    (1) The moneys in the trust fund shall be expended only as provided in this section and are hereby appropriated for those purposes.

    (3) The State Treasurer shall credit to the trust fund all amounts received for this purpose, including appropriations, grants, gifts, and any amounts received under subsection (h) of this section.

    (4) The State Treasurer shall invest trust fund money in the same manner as surplus funds are invested. Earnings shall be credited to the trust fund.

    (5) Any moneys remaining in the trust fund at the close of the fiscal year do not lapse but shall be carried forward into the succeeding fiscal year to be used for the purposes set forth in this subsection.

    (6) Money shall be disbursed from the trust fund only for the purpose of providing funding to one or more public or private nonprofit organizations, including government organizations, in the development or operation of elder or vulnerable adult abuse, neglect, or financial exploitation prevention or intervention programs. An organization shall be eligible to receive funding only if:

    (A) The organization agrees to provide at least a twenty-five percent match of the total project amount requested, which may consist of monetary or in-kind contributions;

    (B) The organization demonstrates a willingness and ability to provide program models and consultation to other organizations and communities regarding program development and maintenance; and

    (c) The organization funds:

    (i) Programs which provide advocacy, crisis counseling, financial guardianship, or other similar services to victims of elder or vulnerable adult abuse, neglect, or financial exploitation;

    (ii) Law enforcement, prosecution, or court-based programs that enhance case investigations, prosecutions, or victim assistance in criminal cases involving elder or vulnerable adult abuse, neglect, or financial exploitation;

    (iii) Programs which develop and implement public education and awareness campaigns on elder and vulnerable adult abuse, neglect, or financial exploitation by making use of electronic and print media to inform the public about the nature of these crimes and available resources such as victims rights, legal remedies, agency services, and prevention strategies; or

    (iv) Research initiatives that provide greater insight into the dynamics of elder and vulnerable adult abuse, neglect, or financial exploitation and guidance on best practices for intervention or prevention strategies.

    (7) (A) Fiscal, programmatic, and disbursement authority over trust fund money shall be provided by the Court of Claims, which shall develop a review panel system to award grants from the trust fund on an annual basis. Panel members shall be individuals with knowledge and operational experience in elder and vulnerable adult abuse, neglect, or financial exploitation and shall be drawn from the law enforcement, court, prosecution, and victim advocacy communities.

    (B) In disbursing money from the trust fund, the panel shall not disburse to any one program more than twenty-five percent of the total funds available for disbursement and shall seek to distribute meaningful awards to as many programs as possible throughout the state.

    (8) The Court of Claims shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement this subsection.

    NOTE: The purpose of this bill is to prevent a person who has taken the life or committed felony abuse of a decedent incapacitated adult from receiving an inheritance from that decedent. The bill also establishes the Elder and Vulnerable Adult Victims Trust Fund and provides for distribution of moneys from that fund.

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