HB4378 S JUD AM #1

Lovell 7908


The Committee on the Judiciary moved to amend the bill by striking out everything after the enacting section and inserting in lieu thereof the following:


§44A-3-17. Petition by certain persons for access to persons in guardianship; hearing and court order.

            (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. Additionally, as used in this section and section eighteen of this article, "relative" includes any person who has a family-type relationship with a protected person and any person with whom the protected person resided immediately prior to the time guardianship was sought.

(b) A relative may file a petition in circuit court seeking access to and information about a protected person which may include the opportunity to have visitation and contact with the protected person. The petition may be filed in the circuit court of the county in which the protected person resides or if the protected person has been admitted to a health care facility in a county other than that in which he or she resides in the circuit court of the county in which the heath care facility is located.

(c) The court shall schedule a hearing on the petition within sixty days of the petition being filed; Provided, That if the petition alleges that the protected person’s health is in significant decline or he or she is at imminent risk of death, an emergency hearing shall be scheduled as soon as practicable. The court may continue a hearing for good cause shown.

(d) Service of process upon the guardian shall be by personal service, consistent with the West Virginia Rules of Civil Procedure. Service of the petition shall be effected at least ten days prior to the scheduled hearing date: Provided, That where an emergency hearing is sought pursuant to subsection (c) of this section, service of process upon the guardian shall be as far in advance of the scheduled hearing date as possible.

(e) Upon notice and hearing the court may:

(1) Deny the petition;

(2) Order the guardian to allow the petitioner access to the protected person upon finding, by a preponderance of the evidence, that the guardian is preventing access by the petitioner to the protected person, that the protected person is desirous of contact with the petitioner.

(f) In determining whether to order that the petitioner shall have access to the protected person, the court shall consider the best interests of the protected person.

(g) The court may, in its discretion, award the prevailing party in an action brought under this section court costs and reasonable attorney’s fees. Court costs and attorney’s fees awarded under this subsection may not be paid from the protected person’s estate.

(h) If the court grants the petition it may, in its discretion, retain jurisdiction over the matter and modify its order consistent with the best interests of the protected person.

(i) The provisions of this section apply to all guardianship of protected persons regardless of the date guardianship was established.

§44A-3-18.  Guardian's Duty To Inform Certain Relatives About Protected Person's Health And Residence.

(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 relatives if:

(1) The protected person dies;

(2) The protected person is admitted to a medical facility for a period of three days or more;

(3) The protected person's residence has changed; or

(4) The protected person is staying at a location other than his or her usual place of residence for a period that exceeds two calendar weeks.

(c) In the case of the death of the protected person, the guardian shall inform the relative of any funeral arrangements and the location of the protected person's final resting place.

(d) A relative entitled to receive information regarding a protected person under this section may waive the notice required thereof by this section by providing a written waiver to the guardian.  A guardian shall file any such written waiver with the court.