Chapter 44A, Chapter 44A

This chapter is known and may be cited as the "West Virginia Guardianship and Conservatorship Act". The Legislature finds that section six, article eight of the Constitution of the State of West Virginia gives it the discretionary authority to pass legislation which "...provides …

(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 co…

A guardian or conservator who is or who later becomes a nonresident of this state shall file with the clerk of the circuit court in the county in which the proceeding is pending or where he or she was appointed guardian/conservator a designation of an agent residing in this state…

(a) A guardian, conservator or like fiduciary appointed in another state may be appointed to serve as a guardian or conservator in this state upon presentation of a petition therefor, proof of appointment, and a certified copy of such portion of the court record in the other stat…

(a) Any guardian or conservator, whether full, temporary, or limited, is entitled to reasonable compensation as allowed by the court from the estate, including reimbursement for costs advanced. The frequency and amount of all compensation must be approved by the court. (b) No gua…

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 leg…

(a) A person employed pursuant to a written contract or other employment arrangement with a licensed provider of behavioral health services for the purpose of providing services to a protected person, may be appointed by a court as the guardian or conservator of the protected per…

(a) Any person determined to be "mentally incompetent", "intellectually disabled" or "mentally handicapped" and for such reason deemed to be in need of a guardian or committee pursuant to any order entered and in effect before the effective date of this chapter is deemed to be a …

The existence of a living will, medical power of attorney, durable power of attorney or other advance directive, duly executed by a person alleged to be a “protected person”, as defined in section four of this article, or the prior appointment of a surrogate decisionmaker for the…

As used in this chapter, unless a different meaning is clearly required by the context: (1) “Conservator” means a person appointed by the court who is responsible for managing the estate and financial affairs of a protected person, and, where the context plainly indicates, the te…

The West Virginia “Rules of Civil Procedure for Trial Courts of Record” shall apply to all proceedings instituted under the provisions of this chapter except as is otherwise specifically provided.

Nothing in this chapter may be construed to supersede the provisions of the Uniform Veterans’ Guardianship Act, article fifteen, chapter forty-four of this code, nor any provisions of this code regarding testamentary guardianships or appointments of guardians for minors.

(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 t…

(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 i…

(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 Human Services appointed as conservator or guardian, respectively. (b) The court shal…

(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 co…

(a) The court alone shall determine whether a guardian or conservator should be appointed, the type of guardian or conservator and the specific areas of protection, management and assistance to be granted. Any determination that the individual is a protected person shall contain …

(a) A limited guardian may be appointed for an individual who is deemed to be a protected person in need of a guardian within the meaning of section four, article one of this chapter, but is capable of addressing some of the essential requirements for his or her health, care, saf…

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 cont…

(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…

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 bo…

(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 s…

(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…

A petition for the appointment of a guardian, conservator or both of a minor may be filed if the minor is at least seventeen years and ten months of age and the petition alleges that the minor would qualify as a "protected person", as that term is defined in section four, article…

(a) A petition for the appointment of a guardian, a conservator, or both, may be filed by the individual alleged to be a protected person, by a person who is responsible for the individual’s care or custody, by the facility providing care to the individual, by the person that the…

The petition shall include a report by a licensed physician or psychologist evaluating the condition of the alleged protected person which shall contain, to the best information and belief of its signatory or signatories: (1) A description of the nature, type and extent of the pe…

Prior to a hearing for a conservatorship, the petitioner shall file a statement of the financial resources of the alleged protected person which shall to the extent known list the person’s social security number, list with reasonable detail the approximate value of the person’s r…

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 …

(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…

(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 per…

(a) Any person who has sufficient capacity to form a preference may at any time nominate any individual or entity to serve as his or her guardian or conservator. The nomination may be made in writing, by an oral request to the court, or may be proved by any other competent eviden…

(a) The court may hear the petition for the appointment of a guardian or conservator or may designate the mental hygiene commissioner in the circuit to serve as the trier of fact at the hearing on the petition: Provided, That the court shall be the trier of fact at the hearing on…

(a) The guardian of a protected person owes a fiduciary duty to the protected person and is responsible for obtaining provision for and making decisions with respect to the protected person’s support, care, health, habilitation, education, therapeutic treatment, social interactio…

(a) The court, upon petition therefor, may waive the requirement that accountings be filed or may permit accountings to be filed less frequently than annually if it determines that the expense involved or burden placed on the conservator in preparing and presenting annual account…

(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) …

(a) Unless court approval is first obtained, or unless such relationship existed prior to the appointment and was disclosed in the petition for appointment, a conservator may not: (1) Have any interest, financial or otherwise, directly or indirectly, in any business transaction o…

(a) A guardian shall have a fiduciary duty to the protected person for whom he or she was appointed guardian and may be held personally liable for a breach of that duty, including being required to pay restitution for any embezzled or concealed funds. (b) A guardian is not liable…

(a) A conservator shall have a fiduciary duty to the protected person for whom he or she was appointed conservator and may be held personally liable for a breach of that duty, including being required to pay restitution for any embezzled or concealed funds. (b) Unless otherwise p…

No liability may accrue to any present conservator or guardian appointed pursuant to the provisions of this chapter solely for the prior acts or failure to act of any committee or guardian appointed under prior law, as defined in subsection (f), section two, article one of this c…

Any individual or entity who, in good faith, conducts business with a guardian or conservator as to any matter or transaction is entitled to presume that the guardian or conservator is properly authorized to act. The fact that an individual or entity conducts business with a guar…

Nothing in this chapter shall prohibit the court from limiting the powers which may otherwise be exercised by a guardian or conservator without prior court authorization, from authorizing transactions which might otherwise be prohibited, or from granting additional powers to a gu…

(a) As used in this section, unless the context otherwise requires, “relative” means a spouse, parent, grandparent, stepparent, child, grandchild, sibling or half sibling. The term includes said relationships that are created as a result of adoption. (b) A relative may file a pet…

(a) The provisions of this section apply to relatives who have been granted access to a protected person under section seventeen of this article. (b) Except as provided by subsection (d) of this section, the guardian of a protected person shall as soon as practicable inform such …

(a) Any guardian appointed pursuant to the provisions of this chapter shall file periodic reports, in accordance with section eleven of this article including: (1) A description of the current mental, physical, and social condition of the protected person; (2) A description of th…

(a) A conservator of a protected person, without the necessity of seeking prior court authorization, shall apply the income and principal of the estate as needed for the protected person’s support, care, health, and if applicable, habilitation, education or therapeutic needs. A c…

(a) A conservator, in managing the estate, shall act as a fiduciary and serve in the best interests of the protected person and, in addition, has the following powers which may be exercised without prior court authorization, except as otherwise specifically provided: (1) To inves…

(a) A conservator shall not sell real estate and shall not be authorized to mortgage any real estate without approval of the court. (b) Following a petition by the conservator for the sale or mortgage of real property, the court or mental hygiene commissioner shall appoint a guar…

Upon petition therefor, the court may authorize a conservator to enter into a protective arrangement, to disburse the estate of the protected person and to petition for termination of the conservatorship. “Protective arrangements” include, but are not limited to, the payment, del…

(a) Upon petition, the court may authorize a conservator to exercise the following powers over the estate or financial affairs of a protected person which the protected person could have exercised if he or she were not subject to conservatorship: (1) To make gifts to charity or o…

(a) Within sixty days following entry of an order of appointment, a conservator shall file with the court an inventory of the real and personal estate of the protected person which has come into the conservator’s possession or knowledge. The inventory shall include, with reasonab…