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2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 3. Guardianship and Conservatorship Administration › §44A-3-1. Duties of Guardian of Protected Person

(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 interactions with friends and family, and, if not inconsistent with an order of commitment or custody, to determine the protected person’s residence.
(b) A guardian shall maintain sufficient contact of not less than once very six months with the protected person to know of the protected person’s capabilities, limitations, needs, and opportunities.
(c) A guardian shall be required to seek prior court authorization to change the protected person’s residence to another state, to terminate or consent to a termination of the protected person’s parental rights, to initiate a change in the protected person’s marital status, to deviate from a protected person’s living will or medical power of attorney, or to revoke or amend a durable power of attorney executed by the protected person.
(d) A guardian shall exercise authority only to the extent necessitated by the protected person’s limitations, and, where feasible, shall encourage the protected person to participate in decisions, to act on his or her own behalf, and to develop or regain the capacity to manage personal affairs.
(e) A guardian shall, to the extent known, consider the express desires and personal values of the protected person when making decisions, and shall otherwise act in the protected person’s best interests and exercise reasonable care, diligence, and prudence.
(f) Upon the petition of an interested party or upon its own motion, the court or Mental Hygiene Commissioner may order the guardian to take appropriate action to address the needs and best interests of the protected person as required by this section.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 3. Guardianship and Conservatorship Administration › §44A-3-2. Reports by Guardian of Protected Person

(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 the protected person’s living arrangements during the reported period;
(3) The medical, educational, vocational, and other professional services provided to the protected person and the guardian’s opinion as to the adequacy of the protected person’s care;
(4) A summary of the guardian’s visits with the protected person, the guardian's social interactions with the protected persons, the guardian's efforts and activities on behalf of the protected person, including the guardian's efforts facilitating on behalf of the protected person social interactions with friends and families, and the guardian's efforts facilitating the protected person engagement in social activities;
(5) A statement of whether the guardian agrees with the current treatment or habilitation plan;
(6) A recommendation as to the need for continued guardianship and any recommended changes in the scope of the guardianship;
(7) Any other information requested by the court or useful in the opinion of the guardian;
(8) The compensation requested and the reasonable and necessary expenses incurred by the guardian; and
(9) A verification signed by the guardian stating that all of the information contained in the report is true and correct to the best of his or her knowledge.
(b) The court may order the guardian to attend a hearing on the report by motion of the court or Mental Hygiene Commissioner, or upon the petition of any interested person. A report of the guardian may be incorporated into and made a part of the accounting of the conservator.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 3. Guardianship and Conservatorship Administration › §44A-3-3. Distributive Duties and Powers of the Conservator of a Protected Person

(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 conservator shall also apply the income and principal as needed for the support of any legal dependents who are unable to support themselves and who are in need of support.
(b) A conservator, when making distributions, shall exercise authority only to the extent necessitated by the protected person’s limitations, and shall, where feasible, encourage the protected person to participate in decisions, to act on his or her own behalf, and to develop or regain the capacity to manage the estate and his or her financial affairs. A conservator shall also consider the size of the estate, the probable duration of the conservatorship, the protected person’s accustomed manner of living, other resources known to the conservator to be available, and the recommendations of the guardian.
(c) A conservator shall, to the extent known, consider the express desires and personal values of the protected person when making decisions, and shall otherwise act in the protected person’s best interests and exercise reasonable care, diligence and prudence.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 3. Guardianship and Conservatorship Administration › §44A-3-5. Sale or Mortgage of Real Estate

(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 guardian ad litem and set a hearing on the petition. The conservator shall personally serve the protected person and serve by certified mail all persons entitled to notice pursuant to the original petition at least thirty days prior to the hearing.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 3. Guardianship and Conservatorship Administration › §44A-3-6. Protective Arrangements

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, delivery, deposit, or retention of funds or property; the sale, mortgage, lease, or other transfer of property; the execution of an annuity contract, a contract for life care, a deposit contract, or a contract for training and education; and the addition to or establishment of a suitable trust.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 3. Guardianship and Conservatorship Administration › §44A-3-7. Estate Planning

(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 other donees and to convey interests in any property;
(2) To provide support for individuals who are not legal dependents;
(3) To amend or revoke trusts or to create or make additions to revocable or irrevocable trusts even though such trusts may extend beyond the life of the protected person;
(4) To disclaim, renounce, or release any interest or power, or to exercise any power;
(5) To exercise options or change the beneficiary on or withdraw the cash value of any life insurance policy, annuity policy, or retirement plan;
(6) To elect against the estate of the protected person’s spouse;
(7) To withdraw funds from multiple party bank accounts, to change the beneficiary on or dispose of any payable or transfer on death arrangement, or to dispose of any property specifically devised or bequeathed under the protected person’s will.
(b) The court, in authorizing the conservator to exercise any of the above powers, shall primarily consider the decision which the protected person would have made, to the extent that the decision can be ascertained. The court shall also consider the financial needs of the protected person and the needs of legal dependents for support, possible reduction of income, estate, inheritance or other tax liabilities, eligibility for governmental assistance, the protected person’s prior pattern of giving or level of support, the existing estate plan, the protected person’s probable life expectancy, the probability that the conservatorship will terminate prior to the protected person’s death, and any other factors which the court believes pertinent.
(c) No order may be entered under this section unless notice of hearing is first given to the protected person, to the beneficiaries of the protected person’s estate plan and to the individuals who would succeed to the protected person's estate by intestate succession. No trust may be amended or revoked without prior notice of hearing to the trustee thereof.
(d) In making a determination under this section, the court shall be entitled to compel the production of documents, including the protected person's will.
(e) Nothing in this section shall be construed to create a duty on the part of a conservator to revise a protected person's estate plan.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 3. Guardianship and Conservatorship Administration › §44A-3-8. Conservator’s Inventory

(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 reasonable detail, a listing of each item of the estate, its approximate fair market value and the type and amount of encumbrance to which it is subject. The inventory shall list with reasonable detail any items that the conservator believes are valueless and intends to abandon. If any real or personal estate comes into the possession or knowledge of the conservator subsequent to the filing of the initial inventory, the conservator shall either amend the inventory or list the same in the next accounting required to be filed with the court, as described in this section.
(b) A conservator shall mail a copy of the inventory to the individuals and entities who received notice of hearing, as specified in section six, article two of this chapter, no later than fourteen days following its presentation of the inventory.
(c) Any person who knowingly violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $25 nor than more $100.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 3. Guardianship and Conservatorship Administration › §44A-3-9. Accountings by Conservator

Any conservator appointed pursuant to the provisions of this chapter shall file periodic accountings as provided for under section eleven of this article.
(a) The accounting shall include:
(1) A listing of the receipts, disbursements and distributions from the estate under the conservator’s control during the period covered by the accounting;
(2) A listing of the estate;
(3) The services being provided to the protected person;
(4) The significant actions taken by the conservator during the reporting period;
(5) A recommendation as to the continued need for conservatorship and any recommended change in the scope of the conservatorship.
(6) Any other information requested by the court or useful in the opinion of the conservator;
(7) The compensation requested and the reasonable and necessary expenses incurred by the conservator; and
(8) A verification signed by the conservator stating that all of the information contained in the accounting is true and correct to the best of his or her knowledge.
(b) The court may order the conservator to attend a hearing on the accounting by motion of the court or upon the petition of any interested person. An accounting by a conservator may be incorporated into and made a part of the report of the guardian.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 3. Guardianship and Conservatorship Administration › §44A-3-10. Waiver of Accountings

(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 accountings outweighs the benefit and protection afforded thereby to the protected person.
(b) In determining whether accountings may be waived or filed less frequently than annually, the court shall consider:
(1) The relationship of the conservator to the protected person;
(2) The value of the estate and annual gross income and other receipts within the conservator’s control;
(3) The amount of the bond;
(4) The extent to which the estate has been deposited under an arrangement requiring an order of court for its removal;
(5) The extent to which the income and receipts are payable directly to a facility responsible for the care or custody of the protected person;
(6) The extent to which the income and receipts are derived from state or federal programs that require periodic accountings;
(7) Whether a guardian has been appointed, and if so, whether the guardian has presented reports as required; and
(8) Any other factors which the court deems appropriate.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 3. Guardianship and Conservatorship Administration › §44A-3-12. Self-Dealing and Conflicts of Interest

(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 or activity with the conservatorship;
(2) Acquire an ownership, possessors, security, or other pecuniary interest adverse to the protected person, or to the estate, or an interest in an asset in which the protected person also owns an interest;
(3) Directly or indirectly purchase, lease, or sell any property from or to the protected person or from or to the estate;
(4) Borrow or loan funds to the protected person or to the estate, except for reasonable advances without interest for the protection of the estate;
(5) Compromise or otherwise modify a debt owed by the conservator to the protected person or to the estate;
(6) Employ individuals or entities who were associated with or employed by the conservator prior to the appointment; or
(7) Directly or indirectly purchase, lease or sell property or services from or to any entity in which the conservator or a relative of the conservator is an officer, director, shareholder or proprietor, or owns a significant financial interest.
(b) Any activity prohibited by this section is voidable by the court upon the petition of any interested person or upon a motion of the court. This section does not limit any other remedies which may be available for a breach by the conservator or others of their fiduciary duty to the protected person or to the estate.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 3. Guardianship and Conservatorship Administration › §44A-3-13. Personal Liability of Guardians

(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 for the acts of the protected person, unless the guardian is personally negligent, nor is a guardian required to expend personal funds on behalf of the protected person.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 3. Guardianship and Conservatorship Administration › §44A-3-14. Personal Liability of Conservators

(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 provided in the contract, a conservator is not personally liable on a contract entered into in a fiduciary capacity in the course of administration of the estate unless the conservator fails to reveal the representative capacity or to identify the estate in the contract.
(c) A conservator is personally liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if personally negligent.
(d) Claims based upon contracts entered into by a conservator in a fiduciary capacity, obligations arising from ownership or control of the estate, or torts committed in the course of administration of the estate, may be asserted against the estate by proceeding against the conservator in a fiduciary capacity, whether or not the conservator is personally liable therefor.
(e) A successor conservator is not personally liable for the contracts or actions of a predecessor. However, a successor conservator is not immunized from liability for a breach of fiduciary duty committed by a predecessor if the successor learns of the breach and fails to take reasonable corrective action.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 3. Guardianship and Conservatorship Administration › §44A-3-14a. No Liability of Present Conservator or Guardian for Prior Acts or Failure to Act of Preceding Conservators, Guardians or Committees

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 chapter, or solely for the prior acts or failure to act of any preceding conservator or guardian, as defined in section four, article one of this chapter. No liability may accrue to any guardian or committee appointed under prior law, as defined in subsection (f), section two, article one of this chapter, solely for the acts or failure to act of any preceding guardian and committee.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 3. Guardianship and Conservatorship Administration › §44A-3-15. Protection for Persons Conducting Business With Guardians and Conservators

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 guardian or conservator with knowledge of the representative capacity does not alone require an inquiry into the authority of the guardian or conservator, except that any such individual or entity shall be charged with knowledge of restrictions which may appear in an order appointing the guardian or conservator. No individual or entity shall be required to see to the proper application of any funds or property paid to or delivered to a conservator.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 3. Guardianship and Conservatorship Administration › §44A-3-16. Court Modification of Powers and Duties of Guardian or Conservator

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 guardian or conservator. Nothing in this chapter shall prohibit a guardian or conservator from seeking court authorization, instructions or ratification for any actions, proposed actions, or omissions to act.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 3. Guardianship and Conservatorship Administration › §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.
(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 recent 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, and that contact with the petitioner is in the best interests of the protected person.
(f) The court may, in its discretion, order the disclosure to the petitioner of such confidential information, as delineated in section one of article three of chapter twenty-seven of this code, as it may deem appropriate.
(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, unless the court orders otherwise.
(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.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 3. Guardianship and Conservatorship Administration › §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.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 4. Termination, Revocation and Modification of Appointments › §44A-4-1. Termination of Appointment of Guardian or Conservator

(a) The appointment of a guardian or conservator shall terminate upon the death, resignation or removal of the guardian or conservator.
(b) The appointment further terminates upon the death of the protected person. The guardian or conservator shall file the certified death certificate of the protected person with the circuit clerk with a final report or accounting.
(c) A guardianship or conservatorship shall terminate whenever jurisdiction is transferred to another state or if ordered by the court following a hearing on the petition of any interested person.
(d) In the case of a missing person, a conservatorship shall terminate when the missing person is located or when the person’s death is established by the production of a certified death certificate, or the person is presumed dead pursuant to the provisions of article nine, chapter forty-four of this code.
(e) The court or the mental hygiene commissioner shall prepare a termination order dismissing the guardianship or conservatorship case and discharging any bond posted by the guardian or conservator.
(f) A termination of an appointment does not affect the liability of a guardian or conservator for prior acts or the responsibility of a conservator to account for the estate of the protected person.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 4. Termination, Revocation and Modification of Appointments › §44A-4-2. Appointment of Successor Guardian or Conservator

The court may appoint a successor guardian or conservator prior to or at the time of a termination. A successor guardian appointed prior to a termination shall be immediately empowered to assume the duties of office but shall be required to file the requisite oath, post any required bond, and complete mandatory education, if required by the court, within thirty days of the termination of the predecessor. A successor guardian or conservator shall succeed to the powers and duties of the predecessor unless otherwise ordered by the court.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 4. Termination, Revocation and Modification of Appointments › §44A-4-3. Resignation of Guardian or Conservator

A guardian or conservator shall petition the court for permission to resign at least sixty days prior to the effective date of resignation. The court shall grant the permission to resign, except for good cause, and, pursuant to the provisions of section two of this article, shall appoint a suitable successor who is willing to serve.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 4. Termination, Revocation and Modification of Appointments › §44A-4-4. Removal of Guardian or Conservator

Upon the petition of any interested person or upon the motion of the court, the court may remove a guardian or conservator or order other appropriate relief if the guardian or conservator:
(1) Is acting under an order entered pursuant to material misrepresentation or mistake, whether fraudulent or innocent;
(2) Has an incapacity or illness, including substance abuse, which affects his or her fitness to perform or is adjudged to be a protected person in this or in any other jurisdiction;
(3) Is convicted of a crime which reflects upon his or her fitness to perform;
(4) Wastes or mismanages the estate, unreasonably withholds distributions or makes distributions in a negligent or reckless manner or otherwise abuses powers or fails to discharge duties;
(5) Neglects the care and custody of the protected person or legal dependents;
(6) Has an interest adverse to the faithful performance of duties such that there is a substantial risk that the guardian or conservator will fail to properly perform those duties;
(7) Fails to file reports or accountings when required, or fails to comply with any court order;
(8) Fails to file sufficient bond after being ordered by the court to do so;
(9) Avoids service of process or notice;
(10) Becomes incapable of performing duties; or
(11) Is not acting in the best interests of the protected person or of the estate, with or without fault. The court may appoint a temporary guardian pending a determination on a petition for removal of a guardian or conservator.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 4. Termination, Revocation and Modification of Appointments › §44A-4-5. Duty of Guardian or Conservator Subsequent to Death of Protected Person

In the absence of an advanced directive, such as a will, living will or power of attorney, or preneed burial or cremation contract, after the death of the protected person, a guardian or a conservator, if there is no guardian, shall continue to have authority to make decisions regarding the body of the deceased protected person for the purposes of authorizing an autopsy and making funeral arrangements. The guardian's or conservator's authority shall continue until an executor or executrix or an administrator or administratrix has been appointed.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 4. Termination, Revocation and Modification of Appointments › §44A-4-6. Petition for Termination, Revocation or Modification; Standards

(a) Upon a petition filed pursuant to this section, or upon a petition for a writ of habeas corpus, duly filed, the court may terminate the appointment of a guardian or conservator.
(b) Upon petition by the protected person, by the guardian or conservator, by any other interested person, or upon the motion of the court, the court may terminate a guardianship, conservatorship, or both, or modify the type of appointment or the areas of protection, management or assistance previously granted. Such termination, revocation or modification may be ordered if:
(1) The protected person is no longer in need of the assistance or protection of a guardian or conservator;
(2) The extent of protection, management or assistance previously granted is either excessive or insufficient considering the current need therefor;
(3) The protected person’s understanding or capacity to manage the estate and financial affairs or to provide for his or her health, care or safety has so changed as to warrant such action;
(4) No suitable guardian or conservator can be secured who is willing to exercise the assigned duties; or
(5) It is otherwise in the best interest of the protected person.
(c) In making a determination under this section, the court shall appoint legal counsel for the protected person and may appoint such other persons whom it deems qualified to make such evaluations as it shall determine appropriate.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 4. Termination, Revocation and Modification of Appointments › §44A-4-7. Hearing on Petition to Terminate, Revoke or Modify

A hearing on a petition to terminate, revoke or modify shall be conducted with the same notice and in the same manner and the protected person shall have the same rights as the protected person would obtain at a hearing on a petition for the appointment of a guardian or conservator. The protected person and the guardian or conservator shall attend the hearing except for good cause shown.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 5. Standby Guardianship › §44A-5-4. Circuit Court's Order Approving Standby Guardianship; Authority; When Effective

(a) When a petition is filed by a person other than a parent having custody of the child, the standby guardian may be appointed only with the consent of the qualified parent unless the circuit court finds that such consent cannot be given for medical reasons.
(b) Upon consideration of the factors set out in subsection (b), section three of this article and finding that: (i) The child's parent is a qualified parent; and (ii) appointment of a standby guardian is in the best interest of the child, the circuit court shall appoint the person requested in the petition as standby guardian, and, if requested, the requested alternate standby guardian. However, when a petition is filed by a person other than a parent having custody of the child, the standby guardian shall be appointed only with the consent of the qualified parent unless the court finds that such consent cannot be given for medical reasons.
(c) The order shall specify the triggering event and shall provide that the authority of the standby guardian is effective: (i) Upon receipt of either a determination of incompetence or a certificate of death; or (ii) if so requested in the petition, upon receipt by the standby guardian of the qualified parent's written consent and filing of this consent with the circuit court. The written consent shall be executed after the entry of the court order and signed by the qualified parent, or by another in his or her presence and on his or her behalf.
(d) As soon as practicable after entry of the order, a copy shall be served on the standby guardian.
(e) A standby guardian shall have the powers and duties of a guardian of the person and guardian of the property of a minor, unless otherwise specified in the order.
(f) The standby guardian shall file with the circuit court as soon as practicable but in no event later than thirty days following a parent's death, determination of incompetence or consent, a copy of the certificate of death, determination of incompetence or consent of the qualified parent upon which the standby authority is based and a determination of debilitation. Failure to file within the time specified shall be grounds for the circuit court to rescind the authority of the standby guardian upon petition of any person, but all acts undertaken by the standby guardian on behalf of and in the interests of the child be valid and enforceable until authority is rescinded.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 5. Standby Guardianship › §44A-5-5. Written Designation of a Standby Guardian by a Parent; Commencement of Authority; Approval Required

(a) A parent may execute a written designation of a standby guardian at anytime. The written designation shall be signed by the parent, witnessed by two adults. Another adult may sign the written designation on behalf of the parent if the parent is physically unable to do so, provided the designation is signed at the express request of the parent and in the presence of the parent. The designated standby guardian or alternate may not sign on behalf of the parent. The signed designation shall be delivered to the standby guardian and any alternate named as soon as practicable. The written designation shall state:
(1) The name, address and birth date of the child affected;
(2) The triggering event; and
(3) The name and address of the person designated as standby guardian or alternate.
(b) Following such delivery of the designation, the authority of a standby guardian to act for a qualified parent shall commence upon the occurrence of the specified triggering event and receipt by him or her of: (i) A determination of incompetence; (ii) a certificate of death of the parent; or (iii) a determination of debilitation and the qualified parent's written consent to such commencement signed by the parent or another on his behalf and at his direction as provided in subsection (a) of this section for the designation.
(c) A standby guardian under a designation shall have the authority of a guardian of the person and a guardian of the property of the child, unless otherwise specified in the designation.
(d) A designated standby guardian or alternate shall file a petition for approval with the circuit court as soon as practicable after the occurrence of the triggering event but in no event later than thirty days after the date of the commencement of his or her authority. The authority of the standby guardian shall cease upon his or her failure to so file, but shall recommence upon such filing. The petition shall be accompanied by a copy of the designation and a: (i) Determination of incompetence; (ii) determination of debilitation and consent; or (iii) a certificate of death.
(e) The notice provisions of subsection (c), section three of this article shall apply to a petition filed pursuant to this section. The circuit court shall enter in an order approving the designated guardian upon finding that:
(1) The person was duly designated as standby guardian pursuant to the section and the designation has not been revoked;
(2) A determination of incompetence was made; a determination of debilitation was made and the parent consented to commencement of the standby guardian's authority; or the parent has died;
(3) The best interests of the child will be served by approval of the standby guardian; and
(4) If the petition is by an alternate, that the designated standby guardian is unwilling or unable to serve.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 5. Standby Guardianship › §44A-5-6. Further Proceedings to Determine Permanent Guardianship

(a) If the triggering event was death of the qualified parent, the standby guardian shall within ninety days of such death, petition for appointment of a guardian for the child as otherwise provided by law or may initiate proceedings to determine legal and physical custody of the child pursuant to article four, chapter forty-eight, or both.
(b) In all other cases a standby guardian shall promptly after occurrence of the triggering event initiate such proceedings to determine guardianship and custody, absent objection by the qualified parent.
(c) The petition shall be accompanied by:
(1) The circuit court’s order approving the standby guardian or the qualified parent's written designation of the standby guardian; and
(2) (i) The attending physician's written determination of incompetence or debilitation; or (ii) certificate of death.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 5. Standby Guardianship › §44A-5-7. Revocation, Refusal and Termination of Standby Guardianship

(a) The authority of a standby guardian approved by the circuit court may be revoked by the qualified parent by his or her filing a notice of revocation with the circuit court. The notice of revocation shall identify the standby guardian or alternate standby guardian to which the revocation will apply. A copy of the revocation shall also be delivered to the standby guardian whose authority is revoked and any alternate standby guardian who may then be authorized to act. At any time following his or her approval by the circuit court, a standby guardian may decline to serve by filing a written statement of refusal with the court and having the statement personally served on the qualified parent and any alternate standby guardian who may then be authorized to act.
(b) When a written designation has been executed, but is not yet effective because the triggering event has not yet occurred, the parent may revoke or the prospective standby guardian may refuse the designation by notifying the other party in writing. A written designation may also be revoked by the subsequent execution of an inconsistent designation.
(c) When a standby guardian's authority is effective upon debilitation or incompetence of the qualified parent, the standby guardian's authority to act on behalf of the parent continues after the parent is restored to health unless the qualified parent notifies the guardian and, if appropriate, the county commission, in writing, that the standby guardian's authority is revoked. If at any time the circuit court finds that the parent no longer meets the definition of “qualified parent”, it shall rescind its approval of the standby guardian.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 5. Standby Guardianship › §44A-5-8. Review of Standby Guardianship

A child's parent, stepparent, functional parent, adult sibling or any adult related to the child by blood or marriage may petition the circuit court that approved the standby guardian at any time following such approval for review of whether continuation of the standby guardianship is in the best interest of the child. Notice of the filing of a petition for review shall promptly be given to the standby guardian, the child if the child is fourteen or more years of age, and each parent of the child whose identity and whereabouts are known or could reasonably be ascertained.
2023 West Virginia Code › Chapter 44A. West Virginia Guardianship and Conservatorship Act › Article 5. Standby Guardianship › §44A-5-9. Petition and Other Records Pertaining to Standby Guardianship Confidential

Upon the filing of a petition requesting the approval of a standby guardian, all pleadings, exhibits and other documents contained in the court file are considered confidential and not open for public inspection, either during the pendency of the case or after the case is closed. The contents of the court file are open to inspection and copying by the parties, their designees and their attorneys.
2023 West Virginia Code › Chapter 44B. Uniform Principal and Income Act › Article 1. Definitions and Fiduciary Duties › §44B-1-102. Definitions

(a) "Accounting period" means a calendar year unless another twelve-month period is selected by a fiduciary. The term includes a portion of a calendar year or other twelve-month period that begins when an income interest begins or ends when an income interest ends.
(b) "Beneficiary" includes, in the case of a decedent's estate, an heir, legatee and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.
(c) "Fiduciary" means a personal representative or a trustee. The term includes an executor, administrator, successor personal representative, special administrator and a person performing substantially the same function.
(d) "Income" means money or property that a fiduciary receives as current return from a principal asset. The term includes a portion of receipts from a sale, exchange or liquidation of a principal asset, to the extent provided in article four of this chapter.
(e) "Income beneficiary" means a person to whom net income of a trust is or may be payable.
(f) "Income interest" means the right of an income beneficiary to receive all or part of net income, whether the terms of the trust require it to be distributed or authorize it to be distributed in the trustee's discretion.
(g) "Mandatory income interest" means the right of an income beneficiary to receive net income that the terms of the trust require the fiduciary to distribute.
(h) "Net income" means the total receipts allocated to income during an accounting period minus the disbursements made from income during the period, plus or minus transfers under this chapter to or from income during the period.
(i) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency or instrumentality; public corporation; or any other legal or commercial entity.
(j) "Principal" means property held in trust for distribution to a remainder beneficiary when the trust terminates.
(k) "Remainder beneficiary" means a person entitled to receive principal when an income interest ends.
(l) "Terms of a trust" means the manifestation of the intent of a settlor or decedent with respect to the trust, expressed in a manner that admits of its proof in a judicial proceeding, whether by written or spoken words or by conduct.
(m) "Trustee" includes an original, additional or successor trustee, whether or not appointed or confirmed by a court.
2023 West Virginia Code › Chapter 44B. Uniform Principal and Income Act › Article 1. Definitions and Fiduciary Duties › §44B-1-103. Fiduciary Duties; General Principles

(a) In allocating receipts and disbursements to or between principal and income, and with respect to any matter within the scope of articles two and three of this chapter, a fiduciary:
(1) Shall administer a trust or estate in accordance with the terms of the trust or the will, even if there is a different provision in this chapter;
(2) May administer a trust or estate by the exercise of a discretionary power of administration given to the fiduciary by the terms of the trust or the will, even if the exercise of the power produces a result different from a result required or permitted by this chapter, and no inference that the fiduciary has improperly exercised the discretion arises from the fact that the fiduciary has made an allocation contrary to a provision of this chapter;
(3) Shall administer a trust or estate in accordance with this chapter if the terms of the trust or the will do not contain a different provision or do not give the fiduciary a discretionary power of administration; and
(4) Shall add a receipt or charge a disbursement to principal to the extent that the terms of the trust and this chapter do not provide a rule for allocating the receipt or disbursement to or between principal and income.
(b) In exercising the power to adjust under subsection (a), section one hundred four of this article, or a discretionary power of administration regarding a matter within the scope of this chapter, whether granted by the terms of a trust, a will or this chapter, including the trustee's power to adjust under subsection (a), section one hundred four of this article, a fiduciary shall administer a trust or estate impartially, based on what is fair and reasonable to all of the beneficiaries, except to the extent that the terms of the trust or the will clearly manifest an intention that the fiduciary shall or may favor one or more of the beneficiaries. The exercise of discretion in accordance with this chapter is presumed to be fair and reasonable to all of the beneficiaries.