1 | State | 2018 Statute Number | 2018 Statute Language |
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2 | West Virginia | W. Va. Code § 9-6-1. Definitions. | As used in this article: (1) “Adult protective services agency” means any public or nonprofit private agency, corporation, board or organization furnishing protective services to adults; (2) “Abuse” means the infliction or threat to inflict physical pain or injury on or the imprisonment of any incapacitated adult or facility resident; (3) “Neglect” means the unreasonable failure by a caregiver to provide the care necessary to assure the physical safety or health of an incapacitated adult; (4) “Incapacitated adult” means any person who by reason of physical, mental or other infirmity is unable to independently carry on the daily activities of life necessary to sustaining life and reasonable health; (5) “Emergency” or “emergency situation” means a situation or set of circumstances which presents a substantial and immediate risk of death or serious injury to an incapacitated adult; (6) “Financial exploitation” means the intentional misappropriation or misuse of funds or assets of an incapacitated adult or facility resident, but does not apply to a transaction or disposition of funds or assets where a person made a good faith effort to assist the incapacitated adult or facility resident with the management of his or her money or other things of value; (7) “Legal representative” means a person lawfully invested with the power and charged with the duty of taking care of another person or with managing the property and rights of another person, including, but not limited to, a guardian, conservator, medical power of attorney representative, trustee or other duly appointed person; (8) “Nursing home” or “facility” means any institution, residence, intermediate care facility for individuals with an intellectual disability, care home or any other adult residential facility, or any part or unit thereof, that is subject to the provisions of §16-5C-1 et seq., §16-5D-1 et seq. §16-5E-1 et seq., or §16-5H-1 et seq. §16-5C-1 et seq. of this code; (9) “Regional long-term care ombudsman” means any paid staff of a designated regional long-term care ombudsman program who has obtained appropriate certification from the Bureau for Senior Services and meets the qualifications set forth in §16-5I-7 of this code; (10) “Facility resident” means an individual living in a nursing home or other facility, as that term is defined in subdivision (7) of this section; (11) “Responsible family member” means a member of a resident’s family who has undertaken primary responsibility for the care of the resident and who has established a working relationship with the nursing home or other facility in which the resident resides. For purposes of this article, a responsible family member may include someone other than the resident’s legal representative; (12) “State Long-term Care Ombudsman” means an individual who meets the qualifications of §16-5I-5 of this code and who is employed by the State Bureau for Senior Services to implement the State Long-term Care Ombudsman Program; (13) “Secretary” means the Secretary of the Department of Health and Human Resources. (14) “Caregiver” means a person or entity who cares for or shares in the responsibility for the care of an incapacitated adult on a full-time or temporary basis, regardless of whether such person or entity has been designated as a guardian or custodian of the incapacitated adult by any contract, agreement or legal procedures. Caregiver includes health care providers, family members, and any person who otherwise voluntarily accepts a supervisory role towards an incapacitated adult. |
3 | W. Va. Code § 9-6-2. Adult protective services; immunity from civil liability; rules; organization and duties. | (a) There is continued within the Department of Health and Human Resources the system of adult protective services heretofore existing. (b) The secretary shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code regarding the organization and duties of the adult protective services system and the procedures to be used by the department to effectuate the purposes of this article. The rules may be amended and supplemented from time to time. (c) The secretary shall design and arrange such rules to attain, or move toward the attainment, of the following goals to the extent that the secretary believes feasible under the provisions of this article within the state appropriations and other funds available: (1) Assisting adults who are abused, neglected, financially exploited or incapacitated in achieving or maintaining self-sufficiency and self-support and preventing, reducing and eliminating their dependency on the state; (2) Preventing, reducing and eliminating neglect, financial exploitation and abuse of adults who are unable to protect their own interests; (3) Preventing and reducing institutional care of adults by providing less intensive forms of care, preferably in the home; (4) Referring and admitting abused, neglected, financially exploited or incapacitated adults to institutional care only where other available services are inappropriate; (5) Providing services and monitoring to adults in institutions designed to assist adults in returning to community settings; (6) Preventing, reducing and eliminating the exploitation of incapacitated adults and facility residents through the joint efforts of the various agencies of the Department of Health and Human Resources, the adult protective services system, the state and regional long-term care ombudsmen, administrators of nursing homes or other residential facilities and county prosecutors; (7) Preventing, reducing and eliminating abuse, neglect, and financial exploitation of residents in nursing homes or facilities; and (8) Coordinating investigation activities for complaints of financial exploitation, abuse and neglect of incapacitated adults and facility residents among the various agencies of the Department of Health and Human Resources, the adult protective services system, the state and regional long-term care ombudsmen, administrators of nursing homes or other residential facilities, county prosecutors, if necessary, and other state or federal agencies or officials, as appropriate. (d) No adult protective services caseworker may be held personally liable for any professional decision or action thereupon arrived at in the performance of his or her official duties as set forth in this section or agency rules promulgated thereupon: Provided, That nothing in this subsection protects any adult protective services worker from any liability arising from the operation of a motor vehicle or for any loss caused by gross negligence, willful and wanton misconduct or intentional misconduct. (e) The rules proposed by the secretary shall provide for the means by which the department shall cooperate with federal, state and other agencies to fulfill the objectives of the system of adult protective services. | |
4 | W. Va. Code § 9-6-3. Cooperation among agencies; termination and reduction of assistance by commissioner. | The secretary shall direct the coordination of the investigation of complaints of abuse or neglect made pursuant to this article; and the various agencies of the department, the adult protective services system, the state and regional long-term care ombudsmen, administrators of nursing homes or other residential facilities, county prosecutors and any other applicable state or federal agency shall cooperate among each other for the purposes of observing, reporting, investigating and acting upon complaints of abuse or neglect of any incapacitated adult or facility resident in this state. | |
5 | W. Va. Code § 9-6-4. Action to abate abuse, neglect or emergency. | The department or any reputable person may bring and maintain an action against any person having actual care, custody or control of an incapacitated adult, for injunctive relief, including a preliminary injunction, to restrain and abate any abuse or neglect of an incapacitated adult or to abate an emergency situation. In any such proceeding the court shall appoint a guardian ad litem, to protect the interests of the incapacitated adult, who shall not be an employee of the state nor be a party to the proceeding nor be selected by or in the employ of any party to the proceeding: Provided, That the court may by order terminate assistance granted or paid to any person found to have abused or neglected an incapacitated adult and order any such assistance to be paid to another person solely for the use and benefit of such abused or neglected person, and grant such other equitable relief as may be appropriate in the circumstances to restrain and abate such abuse or neglect: Provided, however, That in the case of an action to abate an emergency situation, the court may grant the relief authorized in section five of this article. | |
6 | W. Va. Code § 9-6-5. Emergency immediate remedial treatment; procedure. | Whenever a circuit court shall find in an action to abate an emergency situation that there is probable cause to believe that an incapacitated adult is in an emergency situation and that the person or persons having the immediate care, custody and control of such incapacitated adult refuses to take necessary steps to alleviate such emergency, or that such incapacitated adult is without the actual care, custody and control of any persons, it may issue an order of attachment for such incapacitated adult and direct that the peace officer executing the same deliver such incapacitated adult in his custody to a hospital or other safe place except a jail, for immediate remedial treatment to reduce or avoid the risk of death or serious injury. In the event that an order of attachment is issued pursuant to this section, any peace officer executing the order, and such employees of the department the peace officer directs to accompany him, may enter into the place of abode to remove such incapacitated person, notwithstanding the residence therein of other persons. If any employee or officer of the department shall by direct observation of an incapacitated adult not in the immediate care, custody or control of another have reasonable cause to believe that such incapacitated person is then and there in an emergency situation, then such officer or employee may offer transportation to a hospital or other safe place, other than a jail, to such incapacitated adult for immediate remedial treatment to reduce or avoid the risk of death, or serious injury. Immediately upon delivery of any incapacitated person to such hospital or other safe place, such officer or employee shall apply to the circuit court for and the court shall appoint, and in the case of an attachment the court shall contemporaneously with its issuance appoint, a guardian ad litem who shall not be an employee of the state, nor be an interested party nor be selected by nor in the employ of any interested party, to represent the interests of such incapacitated adult, and the court shall fix a time, not later than one judicial day later, to determine if such remedial treatment shall continue or such incapacitated adult should be released. A copy of that attachment and notice of such hearing shall be served on any person in whose actual care, custody and control such incapacitated adult is found. If further remedial treatment is required, application shall be promptly made to the county commission or such other proper tribunal for appropriate relief: Provided, That the commitment for further remedial treatment may be continued until proceedings for such appropriate relief be concluded: Provided, however, That application for release from such remedial treatment may be made and granted at any time that the emergency ceases. | |
7 | W. Va. Code § 9-6-6. Payment and termination of payment for services to incapacitated adult. | If any incapacitated adult (1) requires and is granted remedial treatment for an emergency or the department determines that an incapacitated adult is (2) abused, or (3) neglected, the department may pay any assistance granted for the use and benefit of such incapacitated adult to the person actually providing care for such adult, and terminate payments to any person alleged or shown to have abused or neglected such incapacitated adult, or to whom such payments were made prior to such remedial treatment, for so long as such remedial treatment continues, or until such abuse or neglect is abated, and such incapacitated adult continues to be in the immediate care, custody and control of such person. | |
8 | W. Va. Code § 9-6-7. Comprehensive system of adult protective services; compulsory assistance prohibited. | The department shall develop a plan for a comprehensive system of adult protective services including social case work, medical and psychiatric services, home care, day care, counseling, research and others to achieve the goals of this article. It shall offer such services as are available and appropriate in the circumstances to persons who, other than for compensation, have or intend to have the actual, physical custody and control of an incapacitated adult and to such incapacitated adults or to adults who may request and be entitled to such protective services: Provided, That except as expressly provided in this article, the department may not directly or indirectly compel the acceptance of such services by any person or discriminate against a person who refuses such services. | |
9 | W. Va. Code § 9-6-8. Confidentiality of records. | (a) Except as otherwise provided in this section, all records of the department, state and regional long-term care ombudsmen, nursing home or facility administrators, the office of health facility licensure and certification and all protective services agencies concerning an adult or facility resident under this article are confidential and may not be released, except in accordance with the provisions of section eleven of this article. (b) Unless the adult concerned is receiving adult protective services or unless there are pending proceedings with regard to the adult, the records maintained by the adult protective services agency shall be destroyed thirty years following their preparation. (c) Notwithstanding the provisions of subsection (a) of this section or any other provision of this code to the contrary, all records concerning reports of abuse, neglect or exploitation of vulnerable adults, including all records generated as a result of such reports, may be made available to: (1) Employees or agents of the department who need access to the records for official business. (2) Any law-enforcement agency investigating a report of known or suspected abuse, neglect or exploitation of a vulnerable adult. (3) The prosecuting attorney of the judicial circuit in which the vulnerable adult resides or in which the alleged abuse, neglect or exploitation occurred. (4) A circuit court or the Supreme Court of Appeals subpoenaing the records. The court shall, before permitting use of the records in connection with any court proceeding, review the records for relevancy and materiality to the issues in the proceeding. The court may issue an order to limit the examination and use of the records or any part of the record. (5) A grand jury, by subpoena, upon its determination that access to the records is necessary in the conduct of its official business. (6) The recognized protection and advocacy agency for the disabled of the State of West Virginia. (7) The victim. (8) The victim's legal representative, unless he or she is the subject of an investigation under this article. (d) Notwithstanding the provisions of subsection (a) of this section or any other provision of this code to the contrary, summaries concerning substantiated investigative reports of abuse, neglect or exploitation of adults may be made available to: (1) Any person who the department has determined to have abused, neglected or exploited the victim. (2) Any appropriate official of the state or regional long-term care ombudsman investigating a report of known or suspected abuse, neglect or exploitation of a vulnerable adult. (3) Any person engaged in bona fide research or auditing, as defined by the department. However, information identifying the subjects of the report may not be made available to the researcher. (4) Employees or agents of an agency of another state that has jurisdiction to investigate known or suspected abuse, neglect or exploitation of vulnerable adults. (5) A professional person when the information is necessary for the diagnosis and treatment of, and service delivery to, a vulnerable adult. (6) A department administrative hearing officer when the hearing officer determines the information is necessary for the determination of an issue before the officer. (e) The identity of any person reporting abuse, neglect or exploitation of a vulnerable adult may not be released, without that person's written consent, to any person other than employees of the department responsible for protective services or the appropriate prosecuting attorney or law-enforcement agency. This subsection grants protection only for the person who reported the abuse, neglect or exploitation and protects only the fact that the person is the reporter. This subsection does not prohibit the subpoena of a person reporting the abuse, neglect or exploitation when deemed necessary by the prosecuting attorney or the department to protect a vulnerable adult who is the subject of a report, if the fact that the person made the report is not disclosed. | |
10 | W. Va. Code § 9-6-9. Mandatory reporting of incidences of abuse, neglect or emergency situation. | (a) If any medical, dental or mental health professional, Christian Science practitioner, religious healer, social service worker, law-enforcement officer, humane officer, state or regional ombudsman or any employee of any nursing home or other residential facility has reasonable cause to believe that an incapacitated adult or facility resident is or has been neglected, abused or placed in an emergency situation, or if such person observes an incapacitated adult or facility resident being subjected to conditions that are likely to result in abuse, neglect or an emergency situation, the person shall immediately report the circumstances pursuant to the provisions of section eleven of this article: Provided, That nothing in this article is intended to prevent individuals from reporting on their own behalf. (b) In addition to those persons and officials specifically required to report situations involving suspected abuse or neglect of an incapacitated adult or facility resident or the existence of an emergency situation, any other person may make such a report. (c) The secretary shall develop a form for the filing of written complaints, as provided by section eleven of this article, and provide these forms to all nursing homes or other residential facilities, hospitals, ombudsmen and adult protective service agencies in this state. The forms shall be designed to protect the identity of the complainant, if desired, and to facilitate the prompt filing of complaints. (d) The Department of Health and Human Resources shall develop and implement a procedure to notify any person mandated to report suspected abuse and neglect of an incapacitated adult or facility resident of whether an investigation into the reported suspected abuse or neglect has been initiated and when the investigation is completed. | |
11 | W. Va. Code § 9-6-9a. Mandatory reporting suspected of animal cruelty by adult protective service workers. | In the event an adult protective service worker, in response to a report mandated by section nine of this article, forms a reasonable suspicion that an animal is the victim of cruel or inhumane treatment, he or she shall report the suspicion and the basis therefor to the county humane officer provided under section one, article ten, chapter seven of this code within twenty-four hours of the response to the report. | |
12 | W. Va. Code § 9-6-10. Mandatory reporting to medical examiner or coroner; postmortem investigation. | (a) Any person or official who is required under section nine of this article to report cases of suspected abuse or neglect and who has probable cause to believe that an incapacitated adult or facility resident has died as a result of abuse or neglect shall report that fact to the appropriate medical examiner or coroner. (b) Upon the receipt of such a report, the medical examiner or coroner shall cause an investigation to be made and shall report the findings to the local law-enforcement agency, the local prosecuting attorney, the department's local adult protective services agency, and, if the institution making a report is a hospital, nursing home or other residential facility, to the administrator of the facility, the state and regional long-term care ombudsman and the office of health facility licensure and certification. | |
13 | W. Va. Code § 9-6-11. Reporting procedures. | (a) A report of neglect or abuse of an incapacitated adult or facility resident or of an emergency situation involving such an adult shall be made immediately by telephone to the department's local adult protective services agency and shall be followed by a written report by the complainant or the receiving agency within forty-eight hours. The department shall, upon receiving any such report, take such action as may be appropriate and shall maintain a record thereof. The department shall receive such telephonic reports on its twenty-four hour, seven-day-a-week, toll-free number established to receive calls reporting cases of suspected or known adult abuse or neglect. (b) A copy of any report of abuse, neglect or emergency situation shall be immediately filed with the following agencies: (1) The Department of Health and Human Resources; (2) The appropriate law-enforcement agency and the prosecuting attorney, if necessary; or (3) In case of a death, to the appropriate medical examiner or coroner's office. (c) If the person who is alleged to be abused or neglected is a resident of a nursing home or other residential facility, a copy of the report shall also be filed with the state or regional ombudsman and the administrator of the nursing home or facility. (d) The department shall omit from such report in the first instance, the name of the person making a report, when requested by such person. (e) Reports of known or suspected institutional abuse or neglect of an incapacitated adult or facility resident or the existence of an emergency situation in an institution, nursing home or other residential facility shall be made, received and investigated in the same manner as other reports provided for in this article. In the case of a report regarding an institution, nursing home or residential facility, the department shall immediately cause an investigation to be conducted. (f) Upon receipt of a written complaint, the department shall coordinate an investigation pursuant to section three of this article and applicable state or federal laws, rules or regulations. | |
14 | W. Va. Code § 9-6-12. Reporting person's immunity from liability. | (a) Any person who in good faith makes or causes to be made any report permitted or required by this article shall be immune from any civil or criminal liability which might otherwise arise solely out of making such report. (b) No nursing home may discharge or in any manner discriminate against any resident, family member, legal representative or employee for the reason that he or she filed a complaint or participated in any matter or proceeding stemming from the provisions of this article. (c) Violation of the prohibition contained in subsection (b) of this section by a nursing home or other residential facility constitutes grounds for the suspension or revocation of the license of the facility, if it operates under license pursuant to this code, or other appropriate measure. | |
15 | W. Va. Code § 9-6-13. Abrogation of privileged communications. | The privileged status of communications between husband and wife, and with any person required to make reports under sections nine or ten of this article, except communications between an attorney and his client, is hereby abrogated in circumstances involving suspected or known abuse or neglect of an incapacitated adult or where the incapacitated adult is in a known or suspected emergency situation. | |
16 | W. Va. Code § 9-6-14. Failure to report; penalty. | Any person subject to the mandatory reporting provisions of this article who knowingly fails to make any report required herein or any person who knowingly prevents another person from making such a report is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $100 or imprisoned in the county jail for not more than ten days, or both fined and imprisoned. | |
17 | W. Va. Code § 9-6-16. Compelling production of information. | (a)(1) In order to obtain information regarding the location of an adult who is the subject of an allegation of abuse or neglect, the secretary of the Department of Health and Human Resources may serve, by certified mail, personal service or facsimile, an administrative subpoena on any corporation, partnership, business or organization for production of information leading to determining the location of the adult. In case of disobedience to the subpoena, adult protective services may petition any circuit court to require the production of information. (2) In case of disobedience to the subpoena, in compelling the production of information the secretary may invoke the aid of: (A) The circuit court with jurisdiction over the served party, if the entity served is located in this state; or (B) the circuit court of the county in which the local protective services office conducting the investigation is located, if the entity served is a nonresident. (3) A circuit court shall not enforce an administrative subpoena unless it finds that: (A) The investigation is one the division of adult protective services is authorized to make and is being conducted pursuant to a legitimate purpose; (B) the inquiry is relevant to that purpose; (C) the inquiry is not too broad or indefinite; (D) the information sought is not already in the possession of the division of adult protective services; and (E) any administrative steps required by law have been followed. (4) If circumstances arise where the secretary, or his or her designee, determines it necessary to compel an individual to provide information regarding the location of an adult who is the subject of an allegation of abuse or neglect, the secretary, or his or her designee, may seek a subpoena from the circuit court with jurisdiction over the individual from whom the information is sought. | |
18 | W. Va. Code § 15-2C-1. Definitions. | The following terms when used in this article have meanings ascribed to them in this section, except in those instances where the context clearly indicates a different meaning: (a) “Central abuse registry” or “registry” means the registry created by this article which contains the names of individuals who have been convicted of a felony or a misdemeanor offense constituting abuse, neglect, or misappropriation of the property of a child or an incapacitated adult or an adult receiving behavioral health services. (b) “Child abuse and neglect” or “child abuse or neglect” means those terms as defined in §49-1-201 of this code, and shall include any act with respect to a child which is a crime against the person pursuant to §61-2-1 et seq. of this code, any act which is unlawful pursuant to §61-8D-1 et seq, of this code and any offense with respect to a child which is enumerated in §15-2C-3 of this code. (c) “Abuse or neglect of an incapacitated adult” means “abuse,” “neglect,” and “incapacitated adult” as those terms are defined in §9-6-1 of this code, and shall include any act with respect to an incapacitated adult which is a crime against the person pursuant to §61-2-1 et seq. of this code, and any offense with respect to an incapacitated adult which is enumerated in §15-2C-3 of this code. (d) “Adult receiving behavioral health services” means a person over the age of 18 years who is receiving any behavioral health service from a licensed behavioral health provider or any behavioral health provider whose services are paid for, in whole or in part, by Medicaid or Medicare. (e) “Conviction” of a felony or a misdemeanor means an adjudication of guilt by a court or jury following a hearing on the merits, or entry of a plea of guilty or nolo contendere. (f) “Residential care facility” means any facility where a child or an incapacitated adult or an adult receiving behavioral health services resides which is subject to registration, licensure, or certification by the Department of Health and Human Resources, and includes nursing homes, personal care homes, residential board and care homes, adult family care homes, group homes, legally unlicensed service providers, residential child care facilities, family based foster care homes, specialized family care homes, and intermediate care facilities for the mentally retarded. (g) “Misappropriation of property” means any act which is a crime against property under §61-3-1 et seq. of this code with respect to a child in a residential care facility or an incapacitated adult or an adult receiving behavioral health services in a residential care facility or a child or an incapacitated adult or an adult receiving behavioral health services who is a recipient of home care services. (h) “Home care” or “home care services” means services provided to children or incapacitated adults or adults receiving behavioral health services in the home through a hospice provider, a community care provider, a home health agency, through the Medicaid waiver program, or through any person when that service is reimbursable under the state Medicaid program. (i) “Requester” means the West Virginia Department of Education, any residential care facility, any state licensed day care center, any qualified entity as defined in this section, or any provider of home care services or an adult receiving behavioral health services, providing to the Central Abuse Registry the name of an individual and other information necessary to identify that individual, and either: (1) Certifying that the individual is being considered for employment or service as a volunteer by the requester or for a contractual relationship with the requester where the individual will provide services to a child or an incapacitated adult or an adult receiving behavioral health services for compensation; or contractors and vendors who have or may have unsupervised access to the child, disabled, or elderly person for whom the qualified entity provides care; or (2) certifying that an allegation of abuse, neglect, or misappropriation of property has been made against the individual. (j) “Qualified entity” means any business, agency, or organization that provides care, treatment, education, training, instruction, supervision, or recreation for children, the elderly, or individuals with disabilities and is a public, private, or not-for-profit entity within the State of West Virginia and meets the definition of qualified entity under the federal National Child Protection Act of 1993; P.L. 103-209 as amended by the Volunteers for Children Act; P.L. 105-251. | |
19 | W. Va. Code § 15-2C-2. Central Abuse Registry; required information; procedures. | (a) The Criminal Identification Bureau of the West Virginia State Police shall establish a Central Abuse Registry, to contain information relating to criminal convictions involving child abuse or neglect, abuse or neglect of an incapacitated adult or an adult receiving behavioral health services and misappropriation of property by individuals specified in subsection (b) of this section and information relating to individuals required to be registered as a sex offender. (b) The Central Abuse Registry shall contain, at a minimum, information relating to: Convictions of a misdemeanor or a felony involving abuse, neglect or misappropriation of property, by an individual performing services for compensation, within the scope of the individual's employment or contract to provide services, in a residential care facility, in a licensed day care center in connection with providing behavioral health services, or in connection with the provision of home care services; information relating to individuals convicted of specific offenses enumerated in subsection (a), section three of this article with respect to a child or an incapacitated adult or an adult receiving behavioral health services; information relating to all individuals required to register with the Child Abuse and Neglect Registry established pursuant to article thirteen, chapter fifteen of this code; and information relating to all individuals required to register with the West Virginia State Police as sex offenders pursuant to the provisions of article twelve, chapter fifteen of this code. The Central Abuse Registry shall contain the following information: (1) The individual's full name; (2) Sufficient information to identify the individual, including date of birth, social security number and fingerprints if available; (3) Identification of the criminal offense constituting abuse, neglect or misappropriation of property of a child or an incapacitated adult or an adult receiving behavioral health services; (4) For cases involving abuse, neglect or misappropriation of property of a child or an incapacitated adult or an adult receiving behavioral health services in a residential care facility or a day care center, or of a child or an incapacitated adult or an adult receiving behavioral health services receiving home care services, sufficient information to identify the location where the documentation of any investigation by the Department of Health and Human Resources is on file and the location of pertinent court files; and (5) Any statement by the individual disputing the conviction, if he or she chooses to make and file one. (c) Upon conviction in the criminal courts of this state of a misdemeanor or a felony offense constituting child abuse or neglect or abuse or neglect of an incapacitated adult or an adult receiving behavioral health services, the individual so convicted shall be placed on the Central Abuse Registry. | |
20 | W. Va. Code § 15-2C-7. Registration of home care agencies required; form of registration; information to be provided. | (a) In order to permit providers of home care services not otherwise required to be licensed, certified or registered with the Department of Health and Human Resources by other provision of this code to access information in the central abuse registry, all home care service providers not currently licensed, certified or registered by the department shall register with the office of health facilities licensure and certification. No fee may be charged for registration. Registration information shall be provided on a registration form, but no provision of information shall be deemed to meet the registration requirement until the signature of the service provider is recorded on the registration form. (b) Information required for registration shall include the following: (1) Name, address and telephone number of the service provider; (2) The geographic area where services are provided to consumers, the number of homes where services are provided and the number of consumers provided service; and (3) The services, such as nursing care or personal assistance, provided to consumers. | |
21 | W. Va. Code § 15-2C-8. Service provider responsibilities. | All residential care facilities, day care centers, providers to adults with behavioral health needs and home care service providers authorized to operate in West Virginia shall: (1) Provide notice to current employees of the agency and other persons providing services under a contract with the agency within sixty days of the effective date of this article, and provide notice to any newly hired employee or person at the time an employment or contractual relationship is entered into, which notice shall be in the following form: "NOTICE: All service providers in the State of West Virginia are subject to provisions of law creating a central abuse registry. Any person providing services for compensation to children or to incapacitated adults or to adults receiving behavioral health services, who is convicted of a misdemeanor or felony offense constituting abuse, neglect or misappropriation of property of a child or an incapacitated adult or an adult receiving behavioral health services, is subject to listing on the central abuse registry. The fact that a person is listed on the registry may be disclosed in specific instances provided by law. Listing on the registry may limit future employment opportunities, including opportunities for employment with residential care facilities, day care centers and home care agencies. It is the policy of __________________ [name of agency] to promptly report all suspected instances of abuse, neglect or misappropriation of property to the proper authorities and to cooperate fully in the prosecution of these offenses." (2) Cooperate fully with law enforcement, prosecuting attorneys and court personnel in criminal prosecutions of acts of child abuse or neglect or abuse or neglect of an incapacitated adult or adult receiving behavioral health services. (3) Respond promptly to all requests by other service providers for references for former or present employees of the agency, which response may include a subjective assessment as to whether the individual for whom the reference is sought is suited to provide services to children or incapacitated adults or to adults receiving behavioral health services. | |
22 | W. Va. Code § 15-2C-9. Responsibilities of a Qualified Entity. | (a) Any business, agency or organization that provides care, treatment, education, training, instruction, supervision or recreation for children, the elderly or individuals with disabilities and is a public, private or not-for-profit entity within the State of West Virginia and is a qualified entity as defined in section one of this article may utilize the Central Abuse Registry for part of its screening process for its current and/or prospective employees. Prospective employees and volunteers, for the purposes of this section, include contractors and vendors who have or may have unsupervised access to children or disabled or elderly persons for whom the qualified entity provides care. (b) In order to verify eligibility as a qualified entity, the business, agency or organization shall apply to the West Virginia State Police on a form prescribed by the superintendent. (c) Once verified as a qualified entity by the West Virginia State Police, the entity shall keep all records necessary to facilitate a security audit by the West Virginia State Police and shall cooperate in such audits as the West Virginia State Police or other authorities may deem necessary. Such records include, but are not limited to, criminal history records; notification that an individual has no criminal history; internal policies and procedures articulating the provisions for physical security; records of all disseminations of criminal history information; and a current, executed qualified entity user agreement with the West Virginia State Police. | |
23 | W. Va. Code § 16-2K-1. Legislative findings and statement of purpose. | REPEALED | |
24 | W. Va. Code § 16-5L-1. Short title. | This article may be known and cited as the "West Virginia Long-Term Care Ombudsman Program Act." | |
25 | W. Va. Code § 16-5L-2. Legislative purpose. | The Legislature recognizes that the state commission on aging, as set forth in article fourteen, chapter twenty-nine of this code, pursuant to a grant from the federal government, has established a West Virginia long-term care ombudsman program. The Legislature declares that it is the public policy of this state to encourage community contact and involvement with residents of long-term care facilities. The Legislature finds that in order to comply with the federal Older Americans Act of 1965, as amended, and to effectively assist residents of long-term care facilities in the assertion of their civil and human rights, the structure, powers and duties of the West Virginia long-term care ombudsman program shall be herein defined under this article. | |
26 | W. Va. Code § 16-5L-3. Definitions. | As used in this article, unless a different meaning appears from the context: (a) "Government agency" means any department, division, office, bureau, board, commission, council, authority, or any other agency or instrumentality created by the state or political subdivision thereof or to which the state is a party or by any county or municipality which is responsible for the regulation, visitation, inspection, or supervision of long-term care facilities or which provides services to residents or long-term care facilities; (b) "Long-term care facility" means any nursing home, personal care home, or residential board and care home as defined in section two, article five-c of this chapter; nursing homes operated by the federal government or the state government; extended care facilities operated in connection with hospitals; and any similar institution, residence or place, or any part or unit thereof, however named, in this state which is advertised, offered, maintained or operated by the ownership or management for consideration, for the express and implied purpose of providing accommodations and care or personal assistance to one or more persons who are ill or otherwise incapacitated or are dependent upon the services of others by reasons of physical or mental impairment and who are not related within the degree of consanguinity of second cousin to the owner or manager of the institution, residence or place; (c) "Long-term care ombudsman volunteer" or "ombudsman volunteer" means any uncompensated individual who performs the duties enumerated under section eight of this article: Provided, That the individual has received appropriate certification as set forth in section nine of this article; (d) "Pecuniary interest" means holding a financial interest in or deriving financial benefit from the provision of long-term care, but does not include employment in the long-term care industry or in the home health care industry; (e) "Personal assistance" means personal services, including, but not limited to, the following: Help in walking, bathing, dressing, feeding or getting in or out of bed, or supervision required because of the age or mental impairment of the resident; (f) "Regional long-term care ombudsman" means any paid staff of a designated regional long-term care ombudsman program who has obtained appropriate certification from the state commission on aging and meets the qualifications set forth in section seven of this article; (g) "Resident" means an individual living in a nursing home, personal care home, residential board and care home, or any long-term care facility as defined in subsection (b) of this section, or who has lived in such a setting, or who has made application to live in such a setting: Provided, That nothing in this article may be construed to give a long-term care ombudsman the right to obtain the waiting list of a long-term care facility; (h) "State long-term care ombudsman" means an individual who meets the qualifications of section five of this article and who is employed by the state commission on aging to implement the state long-term care ombudsman program as set forth in this article; and (i) "Guardian" means a person lawfully invested with the power and charged with the duty of taking care of another person and managing the property and rights of another person who for some peculiarity of status or defect of age, understanding or self control is considered incapable of administering his or her own affairs, to include committees or other references under the code. | |
27 | W. Va. Code § 16-5L-4. Creation of the state long-term care ombudsman program. | There is hereby created within the state commission on aging, as set forth in article fourteen, chapter twenty-nine of this code, the West Virginia long-term care ombudsman program, pursuant to the Older Americans Act of 1965, as amended. | |
28 | W. Va. Code § 16-5P-1. Purpose of article. | The purpose of this article is to create a bureau in state government which promotes services to enhance the health, safety and welfare of West Virginia's senior population and serves as the primary agency within state government to provide services to the senior population. | |
29 | W. Va. Code § 16-5P-2. Short title. | This article may be cited as the "Senior Services Act of 1997". | |
30 | W. Va. Code § 16-5P-3. Definitions. | (a) "Bureau" means the Bureau of Senior Services. (b) "Care management" means the planning, arrangement for and coordination of appropriate community-based, in-home services and alternative living arrangements for the frail elderly, disabled or terminally ill. (c) "Care services" means housekeeping, personal care, chore, escort/transportation, meals, in-home nursing, day care and/or respite services. (d) "Commissioner" means the commissioner of the Bureau of Senior Services. (e) "Community care" means a system of community-based, in-home services and alternative living arrangements which provide a full range of preventive, maintenance and restorative services for the frail elderly, disabled or terminally ill. (f) "Comprehensive assessment" means the assessment of needs, counseling in the development of a case plan, arrangements for services and on-going monitoring of the frail elderly, disabled or terminally ill. (g) "Continuum of care" means a system of services which has a primary emphasis on in-home care and community service and which includes services such as nursing, medical, transportation and other health and social services available to an individual in an appropriate setting over an extended period of time. (h) "Council" means the West Virginia council on aging. (i) "Disabled" for the purposes of this act means a person who has temporary or permanent impairments which require services within the continuum of care. (j) "Frail elderly" for the purposes of this act means any person sixty years of age or older, with limitations which restrict the person's ability to perform the normal activities of daily living. (k) "Senior", "Elderly" or "Aging" means any person sixty years of age or older as defined by the term "older individual" in the Older American's Act of 1965 as amended. (l) "Sliding fee scale" means a fee for services provided based on an individual client's ability to pay. | |
31 | W. Va. Code § 16-5P-9. Programs and services for the aging. | (a) The bureau may establish local programs of services for the aging as needed throughout the state. Insofar as possible, services shall be designed to foster continued participation of older people in family and community life and to avoid or postpone the onset of dependency and the need for long-term care. (b) Any allocations by the bureau of appropriations for local programs may be made contingent upon local appropriations or gifts in money or in kind for the support of such programs. The county commission of any county or governing body of any municipality in this state may appropriate and expend money for establishing and maintaining programs. Funds appropriated by the county commission or by the governing body of any municipality in this state may be contributed from time to time to any committee or organization approved by the bureau for the purposes authorized by this section. (c) The bureau as provided hereunder may receive and expend funding, including the state's share of federal funds, designated for the construction, acquisition and renovation of senior centers. (d) The Legislature may appropriate funds on a matching basis or funds from any other source to be used for the purposes stated in this section. | |
32 | W. Va. Code § 16-5P-11. Prevention of crimes against the elderly. | (a) It is the intent of the Legislature that all state agencies cooperate with the bureau and the State Police in carrying out the provisions of this section. (b) In planning and developing programs and recommendations relating to the prevention of crime and the fear of crime, including fraud, against elderly persons, the bureau shall, within existing appropriations, evaluate the need for new or improved programs, including: (1) Public education and awareness; (2) Community coordination in areas of social services and criminal justice; (3) Voluntary involvement of elderly persons and retired professionals in the criminal justice system; (4) Victim and witness assistance; (5) Reduction of the economic and physical consequences of crime against the elderly; and (6) Reduction of isolation of the elderly in the community. (c) State agencies shall cooperate with and assist the bureau, within their available resources, in gathering statistical data and implementing programs which have the potential to prevent crime against elderly persons. | |
33 | W. Va. Code § 16-5S-1. Short title. | This article may be cited as the "Older West Virginians Act of 2000." | |
34 | W. Va. Code § 16-5S-2. Purpose and objectives. | (a) The purpose of this article is to provide guidance and assistance in the development of new or improved activities and programs to help older West Virginians maintain independence, honor and dignity, within available federal and state funds. (b) This article establishes an array of services which are to be provided at a no cost or at a reasonable cost for senior citizens: Provided, That nothing in this article may be construed to require the provision of any service by the bureau. The service packages shall be prioritized first to in-home, community based clients to enable them to remain independent for as long as possible in local settings. Second level priority services shall be those which are preventive and supportive in nature. (c) Management practice shall integrate programs with service providers and service options through a statewide delivery system. (d) Programs shall recognize the strengths of the older population, especially in the areas of volunteerism and leadership, to improve the status of all older individuals in West Virginia. | |
35 | W. Va. Code § 16-5S-3. Definitions. | For the purpose of this article: (a) "Aging network" means the network of the Bureau of Senior Services, area agencies on aging, and local providers of direct services to older individuals; (b) "Bureau" refers to the Bureau of Senior Services; (c) "Commissioner" refers to the commissioner of the Bureau of Senior Services; (d) "Focal point" means a facility established to encourage the maximum collocation and coordination of services for older individuals; (e) "Older individual" or "older West Virginian" or "senior" or "senior citizen" means an individual who is sixty years of age or older; (f) "State agency" refers to the Bureau of Senior Services. | |
36 | W. Va. Code § 16-5S-6. Area agencies on aging. | The area agencies on aging designated by the bureau shall be charged with the following: (a) Prepare and develop an area plan in a format provided by the bureau and as required by the federal administration on aging; (b) Enter into agreements and contracts with local service providers for the provision of supportive services and nutrition services funded through the federal administration on aging; (c) Designate, where feasible, a focal point for service delivery in each community; (d) Establish an advisory council in accordance with the requirements of the federal administration on aging; (e) Serve as an effective and visible advocate for older West Virginians; and (f) Provide appropriate technical assistance and information to local service providers and conduct monitoring of local service providers to ensure compliance with applicable rules, regulations and standards. | |
37 | W. Va. Code § 16-5S-7. Local service providers. | (a) Service providers who offer "Older West Virginians Act" and related services funded through the federal administration on aging shall: (1) Determine the needs of seniors in the particular geographic area covered by gaining input from the seniors themselves, their families and care givers; (2) Develop a plan of service based on the needs of the seniors in a format provided by the area agency; (3) Provide supportive services, nutrition services and senior centers which shall, within available funding, meet the identified needs of seniors; (4) Serve as an effective and visible advocate for older West Virginians; and (5) Participate in the bureau's client tracking system. (b) Service providers who offer Medicaid reimbursed services shall: (1)Comply with appropriate Medicaid regulations and policies including provider agreements, program manuals and program instructions; (2) Maintain client files, provider information and report as required for the determination of compliance with established program standards as determined by the bureau for medical services; and (3) Participate in the bureau's client tracking system. | |
38 | W. Va. Code § 16-5S-8. Supportive services. | Supportive services funded through the federal administration on aging for older West Virginians may include, but are not limited to: Adult day care, assessment, assisted transportation, care training, chore, counseling, discount, home repair, housing assistance, information and assistance, instruction/training, legal assistance, letter/writing, reading, material aid, nutrition education, outreach, telephoning, transportation and visiting, all as defined by the bureau and the federal administration on aging. | |
39 | W. Va. Code § 16-5S-9. Nutrition services. | All congregate meals and home delivered meals shall contain one third of the recommended daily allowance for vitamins and minerals. Congregate meal sites may include senior centers, community buildings, schools, churches and elderly housing complexes. Home delivered meals are to be delivered to eligible individuals, in accordance with guidelines and standards established by the bureau and the federal administration on aging. | |
40 | W. Va. Code § 16-5S-10. Other services. | The bureau shall also coordinate and provide older West Virginians the following: (a) In-home services for those who are frail or at risk of becoming institutionalized; and (b) Disease prevention and health screening services. | |
41 | W. Va. Code § 16-5S-11. Programs and special activities for older West Virginians. | (a) The bureau shall continue and maintain its long-term care ombudsman program codified in article five-l, chapter sixteen of this code. The bureau shall also design and implement programs for the benefit of older West Virginians relating to: Elder abuse, neglect and exploitation; elder rights and legal assistance; in-home personal care for Medicaid and nonMedicaid eligible senior citizens; direct services established by the legislative initiatives for the elderly (LIFE), senior health insurance network as established by the United States health care financing administration and a foster grandparent program as established by the corporation for national and community service. (b) The bureau may sponsor the following special activities for older West Virginians: Governor's golden mountaineer program, a discount program for goods and services at participating merchants, an annual senior citizens conference providing educational and entertainment opportunities, a Governor's summit on aging, a silver haired Legislature and an annual senior day at the Legislature. The bureau may sponsor additional special activities as necessary. | |
42 | W. Va. Code § 26-3-1. Establishment; name; management; superintendent. | The West Virginia home for aged and infirm men and women is hereby established at Sweet Springs, Monroe county, West Virginia, to be known as Andrew S. Rowan Memorial Home, and shall be managed, directed and controlled as provided in article one, chapter twenty-five of this code. The chief executive officer thereof shall be a superintendent who must be a citizen of the state and a person of good executive ability, and who shall be appointed by the Governor by and with the advice and consent of the Senate. | |
43 | W. Va. Code § 26-3-2. Admission of inmates. | Any man or woman shall be eligible for admission to said home who: (1) Has attained the age of sixty years; (2) Has resided in the state for at least one year immediately preceding the application; (3) Has not made an assignment or transfer of property for the purpose of qualifying for public assistance; (4) Is in need of continuing institutional care because of his physical or mental condition; (5) Is actually in need and has not sufficient income or other resources to provide a subsistence compatible with decency and health; and (6) Has no children, father, brothers, sisters or mother of sufficient financial ability to support such person in the manner required by the department of welfare. No person shall be admitted to said home except upon the recommendation of the department of welfare, or unless such person be qualified to admission to said home under the provisions of sections three and four of this article. | |
44 | W. Va. Code § 44A-1-1. Short title and legislative findings. | 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 that all matters of probate, the appointment and qualification of personal representatives, guardians, committees and curators, and the settlements of their accounts..." be under the exclusive jurisdiction of circuit courts. The Legislature further finds and declares that the use of the word "all" does not require an interpretation that the Legislature must place every aspect of such matters with circuit courts, but, that because of the discretionary authority given, the Legislature may transfer, from time to time, only those matters which it believes would be better served under the jurisdiction of circuit courts. The Legislature further finds and declares that legal proceedings requiring a tribunal to determine whether persons should be appointed to manage the personal or financial affairs of individuals deemed mentally incompetent, intellectually disabled, mentally handicapped or missing involve considerations of constitutionally protected rights which can best be resolved within the circuit courts of this state. | |
45 | W. Va. Code § 44A-1-2. Determination and appointments under prior law. | (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 "protected person" within the meaning of this chapter, after its effective date, unless any such determination be revoked or otherwise modified. (b) Any person heretofore appointed to serve as a committee for an incompetent person and any person appointed to serve as a guardian for an individual with an intellectual disability or for a mentally handicapped person, is, as of the effective date of this chapter, deemed to be: (1) A guardian, within the meaning of this chapter, if the order appointing such person provides that the person so appointed has responsibility only for the personal affairs of a mentally incompetent, intellectually disabled or mentally handicapped person; (2) a conservator, within the meaning of this chapter, if the order appointing such person provides that the person so appointed had responsibility only for managing the estate and financial affairs of a mentally incompetent intellectually disabled or mentally handicapped person; or (3) a guardian and a conservator, within the meaning of this chapter, if the order appointing such person does not set forth limitations of responsibility for both the personal affairs and the financial affairs of a mentally incompetent intellectually disabled, or mentally handicapped person. (c) After the effective date of this chapter, the circuit courts have exclusive jurisdiction of all matters involving determinations of mental incompetency, intellectual disability or mental handicap, including the jurisdiction of any proceedings pending as of that effective date. All orders entered before the effective date of this chapter in those cases shall remain in full force and effect until terminated, revoked or modified as provided herein. (d) All persons heretofore appointed to serve as a committee or as a guardian retain their authority, powers and duties in that capacity, except to the extent that their authority, powers and duties as guardian or conservator under the provisions of this chapter are more specifically enumerated, in which event the committee or guardian has the authority, powers and duties so enumerated. Wherever in the Constitution, the Code of West Virginia, Acts of the Legislature or elsewhere in law a reference is made to a committee for an incompetent person, such reference shall be read, construed and understood to mean guardian and/or conservator as defined in this chapter. (e) The provisions of this chapter providing for the presentation of reports by guardians and the presentation of accountings by conservators may not be retroactively applied, and applicable law in effect before the effective date of this chapter controls as to any reports or accountings to be made or filed for any period before the effective date of this chapter. (f) As used in this section, "prior law" refers to article eleven, chapter twenty-seven of this code, relating to the appointment of committees for mentally incompetent persons, and to article ten-a, chapter forty-four, relating to the appointment of guardians for individuals with an intellectual disability and mentally handicapped persons, as those articles were in effect before the effective date of this chapter. | |
46 | W. Va. Code § 44A-1-3. Advance directives. | 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 protected person may eliminate, limit or supersede the need for the assistance or protection of a guardian or conservator, and any person so appointed is to be the first preferred nominee for guardian or conservator, as set forth in section eight, article two of this chapter. | |
47 | W. Va. Code § 44A-1-4. Definitions. | 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 term “conservator” means or includes a “limited conservator” or a “temporary conservator”. (2) “De facto guardian” means a person who is not the medical power of attorney representative or appointed surrogate and has assumed substantial responsibility for any of the personal affairs of another person later found to be a protected person. (3) “De facto conservator” means a person who is not the power of attorney representative or appointed surrogate and has assumed substantial responsibility for managing any portion of the estate and financial affairs of another person later found to be a protected person. (4) “Estate” means real and personal property or any interest in the property and means anything that may be the subject of ownership. (5) “Guardian” means a person appointed by the court who is responsible for the personal affairs of a protected person, and, where the context plainly indicates, the term “guardian” means or includes a “limited guardian” or a “temporary guardian”. (6) “Interested person” means: (A) An individual who is the subject of a guardianship or conservatorship proceeding; (B) A guardian or conservator of a protected person; and (C) Any other person with an actual and substantial interest in the proceeding, either generally or as to a particular matter, as distinguished from a person who has only a nominal, formal, or technical interest in or connection with the proceeding. (7) “Limited conservator” means a person appointed by the court who has only those responsibilities for managing the estate and financial affairs of a protected person, as specified in the order of appointment. (8) “Limited guardian” means one appointed by the court who has only those responsibilities for the personal affairs of a protected person, as specified in the order of appointment. (9) “Living will” means a living will existing and duly executed in accordance with the provisions of article thirty, chapter sixteen of this code. (10) “Medical power of attorney” means a power of attorney existing and duly executed in accordance with the provisions of article thirty, chapter sixteen of this code or existing and executed in accordance with the laws of another state. (11) “Missing person” means an adult individual, eighteen years of age or older, who is absent from his or her usual place of residence in the state and whose whereabouts are unknown for a period of six months or more. (12) “Person” means, generally, a natural person, any corporation, association, partnership or other business entity, any political subdivision or other public agency, public official or any estate, trust or other collection of properties to which the law attributes the capacity of having rights or duties. (13) “Protected person” means an adult individual, eighteen years of age or older, who has been found by a court, because of mental impairment, to be unable to receive and evaluate information effectively or to respond to people, events, and environments to such an extent that the individual lacks the capacity: (A) To meet the essential requirements for his or her health, care, safety, habilitation, or therapeutic needs without the assistance or protection of a guardian; or (B) to manage property or financial affairs or to provide for his or her support or for the support of legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgment, alone, is not sufficient evidence that the individual is a protected person within the meaning of this subsection. “Protected person” also means a person whom a court has determined is a missing person. (14) “Surrogate decisionmaker” means an individual identified as such by an attending physician in accordance with the provisions of article thirty, chapter sixteen of this code. | |
48 | W. Va. Code § 44C-1-1. Short title. | This chapter may be cited as the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act and is cited in this chapter as "this act". | |
49 | W. Va. Code § 44C-1-2. Definitions. | For purposes of this chapter: (1) "Adult" means an individual who has attained eighteen years of age. (2) "Conservator" means a person appointed by the court to administer the property of an adult, including a person appointed under section one, article one, chapter forty-four-a of this code. (3) "Emergency" means a circumstance that likely will result in substantial harm to a respondent's health, safety or welfare and for which the appointment of a guardian is necessary because no other person has authority and is willing to act on the respondent's behalf. (4) "Guardian" means a person appointed by the court to make decisions regarding the person of an adult, including a person appointed under article two, chapter forty-four-a of this code. (5) "Guardianship order" means an order appointing a guardian. (6) "Guardianship proceeding" means a judicial proceeding in which an order for the appointment of a guardian is sought or has been issued. (7) "Home state" means the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months immediately before the filing of a petition for a protective order or the appointment of a guardian; or if none, the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months ending within the six months prior to the filing of the petition. (8) "Incapacitated person" means an adult for whom a guardian has been appointed. (9) "Party" means the respondent, petitioner, guardian, conservator or any other person allowed by the court to participate in a guardianship or protective proceeding. (10) "Person", except in the term "incapacitated person or protected person", means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity. (11) "Protected person", for purposes of this chapter only, means an adult for whom a protective order, as defined in this section, has been issued. "Protected person", as used in this chapter, has the meaning ascribed to it in subsection thirteen-b, section four, article one, chapter forty-four-a of this code. (12) "Protective order," for purposes of this chapter only and notwithstanding the meaning which the term may have outside of this chapter, means an order appointing a conservator or other order related to management of an adult's property. (13) "Protective proceeding" means a judicial proceeding in which a protective order, as defined in this section, is sought or has been issued. (14) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. (15) "Respondent" means an adult for whom a protective order or the appointment of a guardian is sought. (16) "Significant-connection state" means a state, other than the home state, with which a respondent has a significant connection other than mere physical presence and in which substantial evidence concerning the respondent is available. In determining whether a respondent has a significant connection with a particular state, the court shall consider: (A) The location of the respondent's family and other persons required to be notified of the guardianship or protective proceeding; (B) The length of time the respondent at any time was physically present in the state and the duration of any absence; (C) The location of the respondent's property; and (D) The extent to which the respondent has ties to the state such as voting registration, state or local tax return filing, vehicle registration, driver's license, social relationship and receipt of services. (17) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe or any territory or insular possession subject to the jurisdiction of the United States. | |
50 | W. Va. Code § 61-2-10a. Violent crimes against the elderly; sentence not subject to suspension or probation. | (a) If any person be convicted and sentenced for an offense defined under the provisions of section nine or ten of this article, and if the person shall have committed such offense against a person who is sixty-five years of age or older, then the sentence shall be mandatory and shall not be subject to suspension or probation: Provided, That the court may, in its discretion, suspend the sentence and order probation to any person so convicted upon condition that such person perform public service for a period of time deemed appropriate by the court: Provided, however, That the public service may not be rendered in or about facilities or programs providing care or services for the elderly: Provided further, That the court may apply the provisions of article eleven-a, chapter sixty-two of this code to a person committed to a term of one year or less. (b) The existence of any fact which would make any person ineligible for probation under subsection (a) of this section because of the commission or attempted commission of a felony against a victim sixty-five years of age or older shall not be applicable unless such fact is: (i) Found by the court upon a plea of guilty or nolo contendere; or (ii) found by the jury, if the matter is tried before a jury; or (iii) found by the court, if the matter is tried by the court, without a jury. | |
51 | W. Va. Code § 61-2-29. Abuse or neglect of incapacitated adult; definitions; penalties. | (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. | |
52 | W. Va. Code § 61-2-29a. Death of an incapacitated adult by a caregiver. | (a) A caregiver who intentionally and maliciously neglects an incapacitated adult causing death is guilty of a felony and, upon conviction thereof, shall be fined not more than $5000 and be imprisoned in a state correctional facility for a definite term of not less than five nor more than fifteen years. (b) A caregiver of an incapacitated adult who causes the death of an incapacitated adult by knowingly allowing any other person to intentionally or maliciously neglect the incapacitated adult is guilty of a felony and, upon conviction thereof, shall be fined not more than $5000 and be imprisoned in a state correctional facility for a definite term of not less than five nor more than fifteen years. (c) A caregiver of an incapacitated adult who intentionally and maliciously abuses an incapacitated adult which causes the death of the incapacitated adult is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a definite term of not less than five nor more than forty years. (d) A caregiver of an incapacitated adult who causes the death of an incapacitated adult by knowingly allowing any other person to intentionally and maliciously abuse an incapacitated adult is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a definite term of not less than five nor more than forty years. (e) The provisions of this section do not apply to any caregiver or health care provider who, without malice, fails or refuses, or allows another person to, without malice, fail or refuse, to supply an incapacitated adult 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 is an adherent member. | |
53 | W. Va. Code § 61-2-29b. Unlawful expenditure or dissipation of funds of an incapacitated adult by as caregiver. | (a) Any person who financially exploits an elderly person, protected person or an incapacitated adult in the amount of less than $1,000 is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail for not more than one year, or both fined and confined. (b) Any person who financially exploits an elderly person, protected person or an incapacitated adult in the amount of $1,000 or more is guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000 and imprisoned in a state correctional facility not less than two nor more than twenty years. (c) Any person convicted of a violation of this section shall, in addition to any other penalties at law, be subject to an order of restitution. (d) In determining the value of the money, goods, property or services referred to in subsection (a) of this section, it shall be permissible to cumulate amounts or values where such money, goods, property or services were fraudulently obtained as part of a common scheme or plan. (e) Financial institutions and their employees, as defined by section one, article two-a, chapter thirty-one-a of this code and as permitted by subsection thirteen, section four of said article, others engaged in financially related activities, as defined by section one, article eight-c, chapter thirty-one-a of this code, caregivers, relatives and other concerned persons are permitted to report suspected cases of financial exploitation to state or federal law-enforcement authorities, the county prosecuting attorney and to the Department of Health and Human Resources, Adult Protective Services Division or Medicaid Fraud Division, as appropriate. Public officers and employees are required to report suspected cases of financial exploitation to the appropriate entities as stated above. The requisite agencies shall investigate or cause the investigation of the allegations. (f) When financial exploitation is suspected and to the extent permitted by federal law, financial institutions and their employees or other business entities required by federal law or regulation to file suspicious activity reports and currency transaction reports shall also be permitted to disclose suspicious activity reports or currency transaction reports to the prosecuting attorney of any county in which the transactions underlying the suspicious activity reports or currency transaction reports occurred. (g) Any person or entity that in good faith reports a suspected case of financial exploitation pursuant to this section is immune from civil liability founded upon making that report. (h) For the purposes of this section: (1) "Incapacitated adult" means a person as defined by section twenty-nine of this article; (2) "Elderly person" means a person who is sixty-five years or older; (3) "Financial exploitation" or "financially exploit" means the intentional misappropriation or misuse of funds or assets of an elderly person, protected person or incapacitated adult, but shall not apply to a transaction or disposition of funds or assets where the accused made a good-faith effort to assist the elderly person, protected person or incapacitated adult with the management of his or her money or other things of value; and (4) "Protected person" means any person who is defined as a "protected person" in section four, article one, chapter forty-four-a of this code and who is subject to the protections of chapter forty-four-a or forty-four-c of this code. (i) Notwithstanding any provision of this code to the contrary, acting as guardian, conservator, trustee or attorney for or holding power of attorney for an elderly person, protected person or incapacitated adult shall not, standing alone, constitute a defense to a violation of subsection (a) of this section. |