MH & Guardian - Online Training | West Virginia Judiciary

MENTAL HYGIENE AND GUARDIAN
ONLINE TRAINING

Chapter 1. So You've Been Selected for Appointment. What Next?

Chapter 1.1 Filing Affidavit of Mandatory Education

Unless the court has entered an Order indicating that you do not have to complete mandatory education because you have already completed the same within the last 3 years, you are required to complete educational training within 30 days of the date the court determines that there is a protected person.

Completing this online training will fulfill the education requirement. After completion of this training, you will need to file an affidavit with the court, certifying that you have completed the required mandatory education.

At the end of this training, you will find a copy of the affidavit that you can complete, print and file at the circuit clerk's office. The affidavit must be notarized before filing.

Chapter 1.2 Posting Bond

If you are a guardian, you should check the court Order to determine whether you are required to post a bond. Not all guardians are required to post a bond; it depends upon the circumstances of the case on whether the judge will order a bond posted. NO bond is required of the Department of Health and Human Resources.

If you are a conservator, you are required to post a bond unless you are excused by court Order as a:

Banking institution
Nonbanking subsidiary of a bank holding company
Nonbanking subsidiary of a bank or entity jointly owned by federally insured depository institutions
Sheriff

Outside of these listed exceptions, ALL other conservators are required by law to post a bond. The type and amount of bond you must post will be indicated in your court Order. Read it carefully.

If you are required to post a bond, proof of bonding must be submitted to the court within 30 days of entry of the Order regarding the bond. If you cannot obtain a bond in the type or amount ordered, you must go back to court to ask the court to change or reduce the required bond.

Your appointment will not be made or become effective if you do not post the required bond.

Chapter 1.3 Taking the Oath of Office

Your appointment as a guardian or conservator will only become effective after you have subscribed to and filed an oath promising to faithfully perform the duties of the office in accordance with the law.

You should go to the office of the Clerk of the Circuit Court to be administered your oath of office.

Chapter 1.4 Required Notifications You Must Make After Appointment

Within 14 days of the date the Order of Appointment is entered, you must mail a copy of the Order of Appointment, together with the statement of the right to appeal for modification or termination (which is attached to the Order) to the protected person and all individuals and entities that received notice of the original petition.

Chapter 1.5 Reimbursement of Filing Fees

Fees actually paid in the guardianship and/or conservatorship court case for filing the petition (currently $110) and other papers, for service of process, and for copies of court documents and transcripts must be reimbursed by law to the person filing the petition from the protected person's estate if funds are available and if a guardian or conservator is appointed in the case.

Chapter 1.6 Paying the Protected Person's Appointment Counsel

Unless the court finds the protected person's estate devoid of funds, a reasonable rate of compensation is required to be paid from the estate to counsel appointed for the protected person in the guardian and/or conservator appointment case.

The conservator will be presented a bill for payment from the protected person's counsel. Counsel is required to inform the court of his or her hourly rate at the outset of the case and seek approval of his or her fee from the court.

Chapter 1.7 Set Up a File

Get organized and set up a file in which you keep copies of all matters concerning the protected person and your guardianship and/or conservatorship.

Start by having on file all Orders, authorizations and directions of the Circuit Court regarding the protected person. Read the Orders, authorizations and directions thoroughly and do not exceed the authority granted by them. Add a copy to the file of any item concerning the protected person or your guardianship and/or conservatorship as they occur.

Getting organized now will aid both the protected person and you should any claims be made against either of you in the future. Later, be sure to add copies of all reports and accountings you must file.

Chapter 1 Self-Test

Read through each question and test your knowledge on Chapter 1: So You've Been Selected for Appointment. What Next? To check your answers, click the answer immediately following each question.

1. After completing this education training, what must you file with the circuit clerk?

An affidavit signed before a notary that you have completed the mandatory education.
A letter to the court that you have completed the mandatory education.
A copy of your answers to the chapter test.

2. If you are unable to obtain the type or amount of bond the court ordered you to obtain, what must you do?

Forget about it.
Get whatever bond you can closest to the type or amount ordered.
Take the bond issue back to the court to ask for a change in the bond.

3. Where must you go to take your oath of office?

The office of the circuit clerk.
To a notary public.
to the Sheriff.

4. How many days do you have to mail a copy of your Order of Appointment and Statement of the right to appeal to the protected person and all individuals and entities that received notice of the original petition?

5. Can the person who filed the original petition to appoint a guardian or conservator be reimbursed from the protected person's estate for the cost of the filing?

Yes, if the person has kept a receipt.
Yes, if funds are available to pay the costs in the protected person's estate.
No, the cost of filing is not reimbursable.

6. What expenses in addition to filing fees can be reimbursed to the person filing the petition?

None, no other expenses are reimbursable.
Filing fees for other papers, service of process costs, and cost of copies of court documents and transcripts.
Any expenses for which receipts have been kept.

7. The attorney appointed to represent the protected person in the court action to appoint a guardian or conservator is required to be paid from the protected person's estate unless the court makes what finding?

The estate would have to sell personal property to pay the fee.
The estate is devoid of funds.
There is no exception; the estate must always pay the fee.

8. Who must approve the amount of the fee charged by the protected person's attorney before it can be paid?

The conservator.
The guardian if no conservator was appointed.
The court.

9. When is the attorney representing the protected person required to inform the court of his or her hourly rate?

At the onset of the guardianship or conservatorship case.
At the end of the guardianship or conservatorship case.
Never, it is to be agreed upon between the protected person and the attorney.

10. It is highly recommended that you do the following when starting your duties as a guardian or conservator.

Get organized by creating and keeping up to date a file in which to keep copies of all matters concerning the protected person and your guardianship or conservatorship.
Keep records in a number of places and disorganized so that later claims that you are unable to fulfill the appointment duties can be substantiated and you can be removed from the position as you will not be able to find needed documentation.
All of the above answers.

Chapter 1 - Answer Sheet

Chapter 2. General Information Concerning Guardianship And Conservatorship

Chapter 2.1 Protected Person

The protected person is the person for whom a guardian or conservator is appointed. A protected person may also be a missing person.

A protected person is an adult, 18 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 ex>tent that the individual lacks the capacity 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
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.

Chapter 2.2 Guardian

A guardian is a person appointed by the court who is responsible for the personal affairs of a protected person. Guardian responsibilities include:

Deciding where the protected person will live
Providing meals, clothing and activities
Providing daily care
Arranging transportation
Making health care decisions

In addition, the guardian has legal duties that must be fulfilled. This will be explained in more detail in Chapter 4.

2.2a Limited Guardian

A person may be appointed as a limited guardian and have only those responsibilities for the personal affairs that are specified in the order of appointment.

This occurs when the court determines that a protected person needs a guardian for specified purposes, but is also capable of addressing some of the essential requirements for his or her health, care or safety.

A limited guardian may also be appointed as a substitute decision-maker in certain circumstances.

2.2b Temporary Guardian

Sometimes the court will appoint a temporary guardian if it finds that an immediate need exists. A temporary guardian has only those powers and duties specifically set forth in the order of appointment, and the appointment lasts only a limited time.

The appointment of a temporary guardian will expire within 6 months unless it is terminated or extended for up to 6 months by the court or mental hygiene commissioner for good cause shown following a hearing.

Chapter 2.3 Conservator

A conservator is a person appointed by the court who is responsible for managing the estate and financial affairs of a protected person.

The "estate" includes anything that can be owned, such as real estate, personal property, stocks, bonds or other interests in property. Conservator responsibilities include:

Controlling the protected person's assets
Nonbanking subsidiary of a bank holding company
Paying bills
Managing property`

A person may be appointed as a full, limited or temporary conservator.

In addition, the conservator has legal duties that must be fulfilled. This will be explained in more detail in Chapter 5.

Chapter 2.4 Co-Guardians and Co-Conservators

If the court determined that it was in the best interests of the protected person, you and another person may have been appointed to share the responsibilities and duties of appointment together.

Each co-guardian and co-conservator is responsible for fulfilling the responsibilities and legal duties placed upon a guardian or conservator. The fact that one co-guardian or co-conservator may not be fulfilling his or her duties and responsibilities does NOT relieve the other for also not acting as required by law.

Chapter 2.5 Compensation

Any guardian or conservator is entitled to reasonable compensation as allowed by the court from the estate, including reimbursement of costs advanced.

The frequency and amount of all compensation must be approved by the court.

You cannot pay yourself for your work as a guardian or conservator from the protected person's estate (checking account, etc.) unless you have a court order allowing you to do so.

Chapter 2.6 Advance Directives

If you believe an advance directive such as a living will, medical power of attorney or durable power of attorney was executed by the protected person when not competent, then you should consult an attorney about what legal action may be taken to dispute or invalidate the advance directive. You cannot revoke or amend a protected person's durable power of attorney without court approval.

Chapter 2.7 Reports and Accountings

The reports of guardians and inventory and accountings of conservators that you are required to file are required by law to be examined semi-annually by a fiduciary commissioner or other person appointed by the court.

Chapter 2.8 Law Governing Procedure for Appointment

What Law Governs the Procedure for Appointment of a Guardian or Conservator of an Adult?

These procedures are found in §44A-1-1 to §44A-4-7 of the West Virginia Code. This is the court procedure you went through to be appointed.

Chapter 2 Self-Test

Read through each question and test your knowledge on Chapter 2: General Information Concerning Guardianship and Conservatorship To check your answers, click the answer immediately following each question.

1. Which are guardian responsibilities?

Providing or arranging for daily care for the protected person.
Making health care decisions for the protected person not already made by a valid advance directive.
All of the above.

2. Where does one look to determine the responsibilities of a limited guardian?

It depends upon what the protected person tells the limited guardian.
One needs to consult with family, friends, or care givers of the protected person.
One must look to the court order of appointment which specifies the responsibilities of the limited guardian.

3. When does a temporary guardian’s appointment expire?

Within 6 months of the appointment unless extended by court order; one must check the court order.
It does not expire.
It expires when the case goes back to court.

4. What is included in the estate of a protected person?

Anything that can be owned.
Real estate, personal property, stocks, bonds, and other interests in property.
All of the above.

5. Which are conservator responsibilities?

Paying bills of and for the protected person.
Managing property and controlling assets of the protected person.
All of the above.

6. If one co-guardian or co-conservator does not do his or her duties as required by law, what must the other co-guardian or co-conservator do?

Wait until the other co-guardian or co-conservator wants to act.
Act to fulfill the duties and responsibilities as a guardian or conservator as required by law even if the other co-guardian or co-conservator does nothing.
Argue with the co-guardian or co-conservator until you get them to act.

7. How does a guardian or conservator get paid for their work?

You ask the court to approve the frequency and amount of compensation that you want to be paid for your work.
You simply have the guardian pay you for your work.
You must have a written agreement with the guardian to be paid for your work.

8. If you believe a protected person’s durable power of attorney needs changed, how do you do this?

You simply have the protected person execute a new power of attorney.
You tear up the old one and substitute a new one with your signature.
You must take the request to have the power of attorney changed back to the court for approval.

9. How often will the guardian reports or conservator accountings that you file be examined?

Semi-annually
Never
Once every 2 years

10.Where can you find additional information and state law on guardianship and conservatorship law?

You can read the law on adult guardianship and conservatorship in Chapter 44A of the West Virginia Code.
You can go to a state law library and seek out assistance in looking up Chapter 44A of the West Virginia Code.
Both of the above

Chapter 2 - Answer Sheet

Chapter 3. What You Must NOT Do As A Guardian Or Conservator

Chapter 3.1 Employment Or Affiliation Limitations

A guardian or conservator is not permitted by law to be employed by or affiliated with any public agency, entity or facility that is providing substantial services or financial assistance to the protected person.

For example, this means that you could not take a job as an employee of the elderly care home in which the protected person lives.

Chapter 3.2 Do Business With Or Profit

No guardian or conservator nor any officer, agent, director, servant or employee of any guardian or conservator may do business with or in any way profit, either directly or indirectly, from the estate or income of any protected person.

The only exception to this is reasonable compensation as allowed by the court from the estate, including reimbursement for costs advanced by the guardian or conservator for their work as a guardian or conservator.

See the section under "Compensation" in Chapter 2 of this tutorial for more information on allowed compensation.

Chapter 3.3 Make Loans To Self

The law strictly prohibits a conservator from making loans from the accounts of the protected person to a conservator or his or her spouse.

Chapter 3.4 Use Funds For Defense Of Wrongdoing

No guardian or conservator may use funds out of the estate in defense of an allegation of wrongdoing made on behalf of the protected person against the guardian or conservator.

If you are accused of doing something wrong as a guardian or conservator, you cannot use the protected person's money or property to pay for your defense.

Chapter 3.5 Be A Creditor

A person who has an interest as a creditor of a protected person is not eligible for appointment as either a guardian or conservator. There are some limited exceptions in the law for banks and trust companies acting as conservators.

Therefore, you may not loan money to the protected person. There is no prohibition, however, for giving gifts to the protected person.

Chapter 3.6 Fail To File Conservator Accountings And Guardian Reports

It is a criminal violation to knowingly fail to file conservator accountings and guardian reports. You can be fined between $100 to $500 per violation.

Chapter 3.7 Embezzled Or Concealed Funds

As a guardian or conservator, you may be held personally liable for a breach of your fiduciary duty to the protected person and required to pay restitution for any embezzled or concealed funds. Embezzlement or concealment of funds may also result in criminal charges against you.

Chapter 3.8 Misappropriation Or Misuse Of Funds Or Assets

As a guardian or conservator, you have assumed various legal responsibilities for the protected person. If the protected person is unable to carry on the daily activities of life necessary to sustaining life and reasonable health because the protected person is of advanced age, physical, mental or other infirmity, he or she will be considered an “incapacitated adult” and you will be considered a "caregiver" for purposes of criminal action should you misappropriate or misuse the protected person’s funds or assets. Significant criminal penalties attach for a caregiver’s misappropriation or misuse of an incapacitated adult’s funds or assets including:

For intentional misappropriation or misuse of $1000 or more in value, imprisonment in a state correctional facility for one to up to 10 years plus fines up to $5000 will be imposed. If the value is less than $1000, the fine is up to $1000 plus up to one year in jail.
If intentional intimidation, infliction or bodily injury or threats of bodily injury are used to willfully misappropriate or misuse funds or assets, imprisonment of not less than three years and not more than 15 years, plus fines will be imposed.

Chapter 3.9 Elder Neglect

You must not neglect, nor allow others to neglect the protected person. As a guardian, you have assumed the legal responsibility for the protected person. If the protected person is unable to carry on the daily activities of life necessary to sustaining life and reasonable health because the protected person is of advanced age, physical, mental or other infirmity, he or she will be considered an "incapacitated adult" and you will be considered a "caregiver" for purposes of criminal action should you neglect or allow others to neglect the protected person. Significant criminal penalties attach for a caregiver’s neglect of an incapacitated adult including:

For intentional and malicious neglect that causes substantial physical pain, illness or any impairment of physical condition, imprisonment in a state correctional facility for not less than two and up to 10 years as well as fines will be imposed. If serious bodily injury is caused, the penalty raises to not less than three years and up to 15 years imprisonment in a state correctional facility plus fines. If death occurs, the penalty raises to not less than five years and up to 15 years imprisonment plus fines. This criminal penalty can be imposed against you if you knowingly permit another person to intentionally and maliciously neglect the person and it results in death of the person.
Even if the neglect is not intentional or malicious, but unreasonable failure to provide care necessary to assure the person’s physical safety or health, jail time up to one year plus fines will be imposed. This criminal penalty can also be imposed against you if you knowingly permit another person to neglect the incapacitated adult.

Chapter 3.10 Elder Abuse

Be on notice that parties, attorneys and mental hygiene commissioners are required by law to report alleged elder abuse violations to the Department of Health and Human Resources (DHHR) and county prosecutors for further investigation and action. Elder abuse can result in arrest and criminal conviction.

You must not abuse, nor allow others to abuse the protected person. As a guardian, you have assumed the legal responsibility for the protected person. If the protected person is unable to carry on the daily activities of life necessary to sustaining life and reasonable health because the protected person is of advanced age, physical, mental or other infirmity, he or she will be considered an "incapacitated adult" and you will be considered a "caregiver" for purposes of criminal action should you abuse or allow others to abuse the protected person. Significant criminal penalties attach for a caregiver’s abuse of an incapacitated adult including:

For intentional and malicious abuse that causes substantial physical pain, illness or any impairment of physical condition, imprisonment in a state correctional facility for not less than two and up to 10 years as well as fines will be imposed. If serious bodily injury is caused, the penalty raises to not less than three years and up to 15 years imprisonment in a state correctional facility plus fines. If death occurs, the penalty raises to not less than five years and up to 40 years imprisonment. This criminal penalty can be imposed against you if you knowingly permit another person to intentionally and maliciously abuse the person and it results in death of the person.
Even if the abuse is not intentional or malicious, jail time not less than 90 days and up to one year plus fines will be imposed. This criminal penalty can also be imposed against you if you knowingly permit another person to abuse the incapacitated adult.

Chapter 3 Self-Test

Read through each question and test your knowledge on Chapter 3: What You Must NOT Do As A Guardian Or Conservator. To check your answers, click the answer immediately following each question.

1. A guardian or conservator can be employed by the elderly care home in which the protected person lives.

True
False

2. You are accused of not caring properly for the protected person and an interested party brings an action in court to remove you and appoint another. You can use funds belonging to the protected person to defend yourself in court.

True
False

3. You are in need of cash and want to borrow money from the protected person just until your next pay. You can do the same since it is a small amount and for a short period of time.

True
False

4. The protected person has little money. You are willing to loan the protected person a sum of money needed at an interest rate below what the local bank would charge. You can make this loan to the protected person.

True
False

5. The protected person has little money. You are willing to loan the protected person a sum of money, interest free, in order to pay bills that may result in loss of property if not paid, until the protected person can pay you back. You can do the same without violating the law.

True
False

6. The protected person has little money. You are willing to gift the protected person the sum of money needed. You can make this gift to the protected person.

True
False

7. The protected person has little money. There is not enough money to pay for the bills of the protected person. As the conservator or guardian you must pay the bills of the protected person from your own funds.

True
False

8. December 31 is a few days away. You have not filed your guardian report or conservator accounting for this year. You don’t feel you will have time to do so before January of the next year. You can wait on completing and filing the same past the December 31 deadline.

True
False

9. Criminal charges are brought against you for embezzling the protected person’s money. You can sell property of the protected person to hire an attorney in the criminal case.

True
False

10. You will be reported for investigation of elder abuse by parties, attorneys and mental hygiene commissioners if there are any factual circumstances or evidence which support such allegations.

True
False

Chapter 3 - Answer Sheet

Chapter 4. Duties of a Guardian

Chapter 4.1 Duties of a Guardian

Decision-making is the grave and fundamental responsibility of a guardian.

Your obligation to the protected person is to exercise care and diligence when making decisions on his or her behalf.

Decisions should be made in a manner that enables the protected person to maximize independence and self-reliance.

You will face challenges and responsibilities in caring for a protected person, but your role as a guardian can be enhanced by a thorough understanding of your duties.

Chapter 4.2 Caring for the protected person

As a guardian, you are responsible for making decisions and providing for the protected person's care and well-being. You must decide where and how the person will reside, and make sure that he or she obtains the necessary health care and healing treatment.

Chapter 4.3 Contact with the protected person

You must maintain sufficient contact with the protected person to know of his or her capabilities, limitations, needs and opportunities. The contact cannot be any less than one visit every six months and in most circumstances these visits should be more frequent.

Chapter 4.4 Consider the protected person in decisions

While exercising your duties to the protected person, you must adhere to the following important considerations:

Exercise your authority only to the extent necessary because of the protected person's limitations
Whenever feasible, encourage the protected person to:
- Participate in decision-making
- Act on his or her own behalf
- Develop or regain the capacity to manage his or her personal affairs
Consider the express desires and personal values of the protected person when you make decisions on his or her behalf
Act in the protected person's best interest and exercise reasonable care, diligence and prudence

Chapter 4.5 What actions require prior court approval?

It is also important to note that you must obtain prior court authorization for certain actions related to the protected person, such as:

A change in the protected person's residence to another state
Change in marital status
Deviation from the protected person's living will or medical power of attorney
To revoke or amend the protected person's durable power of attorney

Chapter 4.6 Liability/Fiduciary Duty

You cannot be held liable for acts of the protected person unless you are found to be personally negligent. However, you do have a duty to the protected person and may be held personally liable for a breach of that duty.

Fiduciary duty: Because you are serving as a guardian, your actions must merit trust and confidence. Therefore, you must avoid conflicts of interest and demonstrate a high degree of loyalty to the protected person's best interests.

Chapter 4.7 Reporting Requirements

All guardians are required to file periodic reports with the circuit clerk of the county in which the appointment is made, as well as with a fiduciary commissioner or other person to whom the court has referred review of the guardian reports.

You must file your first guardian report within six months of your appointment. Your reports will be viewed at least semi-annually by the fiduciary commissioner or other person to whom the court refers the reports, or by a mental hygiene commissioner. If there are any questions or discrepancies, you may be called back to court to explain or provide records.

4.7a Yearling Reporting

After the first filed report within six months of your appointment, you must file a guardian report by December 31 of each year thereafter. Additional reports may also be required by the court, and are required should you resign, be removed from the office or if the guardianship is terminated.

4.7b What do I report?

Your guardian's reports must include the following:

A description of the current mental, physical and social condition of the protected person
A description of the protected person's living arrangements during the period covered by the report
The medical, educational, vocational and other professional services provided to the protected person, and your opinion as to the adequacy of the care provided to the protected person
A summary of your visits with the protected person and your activities on his or her behalf
A statement of whether you agree with the current treatment or habilitation plan
Your recommendation as to the need for continued guardianship and any changes you may recommend in the scope of the guardianship
Any other information that you consider to be useful or that is requested by the court
The compensation you requested and the reasonable and necessary expenses you incurred
Your verification and signature stating that all of the information contained in the report is true and correct to the best of your knowledge

You should keep careful records of your activities as a guardian, including the time you spend with the protected person and any receipts for expenses.

You can find a copy of the report you must use, complete and file on the West Virginia Supreme Court of Appeals Web site - Court Forms page or you can obtain a copy from the circuit clerk.

Chapter 4 Self-Test

Read through each question and test your knowledge on Chapter 4: Duties of a Guardian To check your answers, click the answer immediately following each question.

1. As a appointed guardian you can “just make the decisions” for the protected person.

True
False the law requires that you encourage, where feasible, the protected person to participate in decisions, and you are to exercise guardian authority only to the extent necessitated by the protected person’s limitations.

2. What is the minimum number of visits you must make with the protected person every 6 months?

3. The minimum number of visits allowed by law every 6 months may not be enough to fulfill your guardian duties.

True you must maintain sufficient contact with the protected person to know of the protected person’s capabilities, limitations, needs and opportunities. One visit every six months may not be sufficient to do so, in which case more contact is required.
False

4. The protected person wants you to listen to him or her about what he or she eats, where he or she lives, and how much cooking her or she can do. Are you obliged to do so?

Yes. The law requires you to consider the desires of the protected person when you make decisions on his or her behalf.
No, you are the guardian and are charged with making such decisions.
Yes, but you do not have to consider such desires when you make decisions on the protected person's behalf.

5. You know that the protected person was very vocal throughout her life in not wanting to be placed in an elderly care home. Do you now have an obligation to consider the protected person’s former desires when deciding where the protected person should live?

No, as guardian you are now charged with making such decisions.
Yes, a guardian, to the extent known, must consider the express desires and personal values of the protected person when making decisions.
No, but it would be nice to do so.

6. The protected person lives in your home and you want to move your family to another state for an employment opportunity that you have. Can you do so?

Yes, pack up and move.
No, protected persons cannot be moved out of state
Yes, but only if you are able to first get the approval by the court for moving the protected person out of state.

7. The protected person wanders into a neighbor’s yard and picks all the flowers in a very expensive exotic flower bed which the neighbor planted. The protected person has little or no funds to pay for the damages. The neighbor sues you as the guardian for the damages. Can you be held personally liable?

Possibly, if the neighbor can prove that you were personally negligent in allowing the protected person to wander into his or her yard and cause such damage.
No, it is not your fault the flowers were pulled up by the protected person.
Yes, as a guardian you are responsible

8. You must file your first guardian report within what period of time after being appointed guardian?

30 Days
3 Months
6 Months

9. With whom must you file your guardian report?

The fiduciary commissioner
The circuit clerk and the fiduciary commissioner or other person to whom the court has referred the reports for review
The circuit clerk only

10. What is the deadline each year for filing your annual guardian reports?

December 31
June 30
February 15

Chapter 4 - Answer Sheet

Chapter 5. Duties of a Conservator

Chapter 5.1 Duties of a Conservator

The duties of a conservator focus on management of the financial affairs of a protected person.

As conservator, you will be responsible for the protected person's assets or income, for establishing a budget and paying bills or debts, or for managing and investing property.

You will also be required to report to the court about the status of the estate, assets, receipts and disbursements.

Maintain separate financial records for the protected person.
- Consider, do you need to set up a separate checking account for the protected person in which to make deposits and from which to draft checks to pay for bills of the protected person?
Do NOT commingle funds with others.

Chapter 5.2 Conservator's Inventory

Within 60 days following the entry of the Order of appointment, you must file with the court and the fiduciary commissioner or other person to which the accountings are referred for revision and inventory of the protected person's real and personal estate, which has come into your possession or knowledge.

The inventory should list, with reasonable detail:

Each item of the estate
Its approximate fair market value
The type and amount of encumbrance to which it is subject
Any items the conservator intends to abandon

The inventory should be amended or updated if any additional real or personal estate comes into your possession or knowledge.

After you present the inventory to the court, you must mail a copy of the inventory to the individuals and entities who received notice of the hearing for the appointment of a conservator. Failure to do so is a criminal offense.

Consider:
A proper inventory of the estate of the protected person includes everything (real and personal property, known or possessed). To protect the protected person and yourself from false claims, make sure your inventory is detailed and accurate. You cannot rely upon only what is listed in the statement of financial resources; you are required to make your own inventory of the estate.

Chapter 5.3 Recommendation of good record keeping

In your file for the protected person, consider maintaining the following information:

A copy of all Orders, authorizations and directions of the court
Demographic identifying information on the protected person
Current address of the protected person
A copy of the inventory you file with the court
A copy of all accountings you file with the court
A record of any services provided the protected person by contract with others
A record of all changes in income or assets of the protected person
A record of significant contacts you have had with the protected person
A record of all activities and actions you have taken for or on behalf of the protected person

Chapter 5.4 Spending the protected person's money

As a conservator, you are responsible for applying the protected person's income and principal as needed for his or her support, care and health; as well as habilitation, education or therapeutic needs.

You also must apply the income and principal as needed for the support of any legal dependents who are unable to support themselves and are in need of support.

You are not required to seek prior court authorization to spend the protected person's income and principal for these purposes.

Chapter 5.5 Considerations when making financial decisions

When making financial distributions, the law requires that you must adhere to the following important considerations:

Exercise your authority only to the extent necessary because of the protected person's limitations
Whenever feasible, encourage the protected person to:
- Participate in decision-making
- Act on his or her own behalf
- Develop or regain the capacity to manage the estate and his or her financial affairs
Consider the size of the estate, the probable duration of the conservatorship, the protected person's accustomed manner of living, other resources that are available, and recommendations of the guardian
Consider the express desires and personal values of the protected person when you make decisions on his or her behalf
Act in the protected person's best interest and exercise reasonable care, diligence and prudence

Chapter 5.6 Powers of Attorney

Do not revoke or amend a durable power of attorney which has been executed by the protected person, unless you have prior approval of the court.

Chapter 5.7 Management Powers and Duties

In managing the estate, you must act as a fiduciary and serve in the best interests of the protected person. Unless otherwise provided by the court, you have the authority to:

Invest funds of the estate in accordance with a standard of prudent investing
Collect, hold and retain assets of the estate, and receive additions to the estate
Continue or participate in the operation of an unincorporated business
Deposit estate funds in a state or federally insured financial institution
Manage, control and sell the personal property of the estate
Perform a contract entered into by the protected person
Renew a lease entered into by a protected person as lessor/lessee
Borrow money and place, renew or extend an encumbrance upon real or personal property
Abandon property when, in your opinion, it is valueless or of no benefit to the estate
Make repairs or alterations in buildings or other property and grant easements
Vote a security in person or by proxy
Consent to reorganization, consolidation, merger, dissolution or liquidation of a corporation or other enterprise
Sell or exercise stock rights, and pay sums chargeable or on account of securities
Hold a security in the name of a nominee or in other form without disclosure of the conservatorship
Insure the assets of the estate against damage or less, and insure the guardian and conservator against liability with respect to third persons
Allow, pay, reject, contest or settle any claim by or against the estate or protected person
Release any claim belonging to the estate as uncollectible
Pay taxes, assessments and other expenses incurred in the collection and administration of the estate
Pay any sum distributable for the benefit of the protected person or his or her legal dependent
Employ persons such as attorneys, accountants, investment advisors or agents; and act upon their recommendations
Maintain life, health, casualty and liability insurance for the benefit of the protected person or legal dependents
Manage the estate following the termination of the conservatorship until its delivery to the protected person or his or her successors
Execute and deliver instruments and take other actions that will accomplish or facilitate the exercise of the powers conferred by law and outlined above

Chapter 5.8 Abandoning Property

You must provide written notice to all persons named in the original petition to appoint as the protected person's nearest relatives if you intend to abandon any property belonging to the protected person.

This notice must be given at least 14 days prior to any abandonment, and you cannot abandon anything sooner than 30 days after you have filed the initial inventory.

Chapter 5.9 What requires court approval?

Certain actions of a conservator may be authorized only upon petition to the circuit court. This includes entering into a protective arrangement to disburse the estate of the protected person and terminate the conservatorship as well as sale or mortgage of real estate.

Also allowable upon petition are a number of estate planning functions, such as:

Donation to a charity
Providing support for individuals who are not legal dependents
Amending, revoking or making additions to trusts
Exercising options or changing beneficiaries of insurance policies, annuities, retirement plans or death arrangement plans
Elections against the estate of a protected person's spouse
Dispose of property specifically devised or bequeathed by the protected person's will
Withdrawing cash value of insurance policies, annuities or retirement plans
Disclaim, renounce, release or exercise of any interest or power

5.9a Sale of Real Estate

Conservators cannot sell real estate without approval of the court.

5.9b Mortgage of Real Estate

Conservators cannot mortgage real estate without approval of the court.

Chapter 5.10 Accounting Requirements

All conservators are required to file periodic accountings with the circuit clerk of the county in which the appointment is made AND with the fiduciary commissioner or other person to whom the court has referred review of the accountings.

You must file your first accounting within 6 months of your being appointed. Your accountings will be viewed at least semi-annually by the fiduciary commissioner or other person to whom the court refers the accountings, or by a mental hygiene commissioner.

If there are any questions or discrepancies, you may be called back to court to explain or provide bank, investment or other records.

You must keep careful records, including financial documents, the time you spend and any receipts for expenses. You can be called before the court on your accountings. Make sure they are accurate and timely filed.

You can find a copy of the accounting you must use, complete and file at West Virginia Supreme Court of Appeals Web site or you can obtain a copy from the circuit clerk.

5.10a Yearly Accountings

After the first accounting, you must file an accounting every year, unless waived by court order. Additional accountings may be required if ordered by the court. An accounting is also required to be filed if you resign or are removed from office or if the conservatorship is terminated.

You must file the annual accounting by December 31 of each year with the circuit clerk and with the fiduciary commissioner or other person to whom the court has referred review of the accountings.

5.10b What to include in the accounting

Your conservator's accounting must include the following:

A listing of the receipts, disbursements and distributions from the estate under your control during the period covered by the accounting
A listing of assets and liabilities of the estate
The services being provided to the protected person
The significant actions you took during the reporting period
Your recommendation as to the need for continued conservatorship and changes you may recommend in the scope of the conservatorship
Any other information that you consider to be useful or that is requested by the court
The compensation you requested and the reasonable and necessary expenses you incurred
Your verification and signature stating that all of the information contained in the accounting is true and correct to be best of your knowledge

5.10c Actions required of the fiduciary commissioners.

The fiduciary commissioner to whom your accountings are referred must serve a copy of the accountings you file on the protected person, and mail a copy to all persons given notice of the original petition to appoint, as well as any other person or entity found to be interested in the affairs of the protected person. These people and entities can file exceptions to or falsify the accounting before the fiduciary commissioner.

5.10d Waiver of Accountings

You may petition the court to change the requirement that accountings be filed or to seek permission to file less frequently than annually.

5.10e What the Court considers for waiver

Your relationship with the protected person
The value of the estate, income and other receipts within your control
The amount of your bond
The extent to which the estate has been deposited under an arrangement that requires a court Order for removal
The extent to which income and receipts are paid directly to a facility responsible for the care or custody of the protected person
The extent to which the income and receipts are from state or federal programs that require periodic accountings
Whether a guardian has been appointed, and if so, whether the guardian has presented reports as required
Any other factors which the court deems appropriate

Chapter 5.11 Conflicts of Interest

As a conservator, you must avoid conflicts of interest and demonstrate a high degree of loyalty to the protected person's best interests. Unless you have prior approval from the court, you may not:

Have any interest, financial or otherwise, directly or indirectly, in any business transaction or activity with the conservatorship
Acquire any ownership or monetary interest adverse to the protected person or to the protected person's estate or assets
Purchase, lease or sell any property from or to the protected person or the estate
Borrow or loan funds to the protected person or to the estate, except for reasonable advances without interest to protect the estate
Compromise or modify a debt owed by you to the protected person or the estate
Employ anyone who has associated with you or was employed by you prior to your appointment as conservator
Lease or sell property or services from or to any entity in which you or your relative is an officer, director, shareholder or proprietor, or owns a significant financial interest

Chapter 5.12 Liability

You have a duty to the protected person and may be held personally liable for a breach of that duty. This is called a fiduciary duty and means that because you are serving as a conservator, your actions must merit trust and confidence.

You are not personally liable on a contract entered into in a fiduciary capacity while administering the estate unless you fail to reveal your representative capacity or to identify the estate. By law, you are liable for any act of a nominee in connection with a security held in the name of a nominee without disclosure of the conservatorship to allow title to pass by delivery.

You may be personally liable for obligations arising from control of the property or for wrongful acts committed in the course of administering the estate if you are personally negligent. You are prohibited by law from making loans from the protected person to yourself or your spouse. Doing so may result in personal liability. Embezzlement or concealment of funds can result in both personal liability and criminal charges.

5.12a Successor Liability

If you have been appointed to succeed a former conservator and you learn that the former conservator breached a fiduciary duty to the protected person, you must take corrective action as failure to do so may result in your being held personally liable as well.

Chapter 5 Self-Test

Read through each question and test your knowledge on Chapter 5: Duties of a Conservator To check your answers, click the answer immediately following each question.

1. A conservator can co-mingle the protected person’s funds with others.

True
False

2. You must file an inventory of the protected person’s estate within what time period after your appointment?

90 Days
120 Days
60 Days

3. With whom must you file your inventory?

The Court
The fiduciary commissioner
The circuit clerk and the fiduciary commissioner or other person to whom the court has made referral

4. After filing your inventory, more property is found that belongs to the protected person, what must you do, if anything?

You must send out a notice that the property was found
You must amend your inventory and file the amended inventory with the circuit clerk and the fiduciary commissioner or other person to which the accountings have been referred
You do not need to take any action

5. The protected person wants you to listen to him or her about what his or her money is spent on. Are you obliged to do so?

Yes, the law requires you to consider the desires of the protected person when you make decisions on his or her behalf
No, you are the conservator and are charged with make such decisions
`Yes, but you do not have to consider such desires when you make decisions on the protected person’s behalf

6. You know that the protected person was very vocal throughout her life in not wanting to donate to a particular charity, but yearly donated to another charity. Do you now have an obligation to consider the protected person’s former desires when deciding whether to make a donation to the first charity?

No, as a conservator you are now charged with making such decisions
Yes, a conservator, to the extent known, must consider the express desires and personal values of the protected person when making decisions
No, but it would be nice to do so

7. Can you continue to make the yearly donations to the charity identified in the prior question?

Yes
No
Not without court approval

8. Notice must be given to the protected person’s nearest relatives identified in the petition to appoint before you can abandon any property belonging to the protected person.

True
False

9. You would like to mortgage the protected person’s home in order to have sufficient funds to have a new roof installed on the home. Can you do so?

Not without prior approval of the court
Yes because the money is being used to improve property of the protected person
No you must sell the home

10. Within what time frame must you file your first conservator accounting?

Within one year of being appointed conservator
Within 6 months of being appointed conservator
Within 90 days of being appointed conservator

Chapter 5 - Answer Sheet

Chapter 6. Future Changes, The "What If"

Chapter 6.1 You move from WV to another state

If at any time during your appointment as a guardian or conservator you become a resident of another state, you must file at the circuit clerk's office a designation of an agent who does reside in WV to accept service of process.

By law, you are required to file this designation of agent promptly following your change of residence to another state.

Certain banks engaging in trust business in WV are exempt from this requirement as they cannot be considered non-residents, and should review the applicable law in WV for more detail (WV Code §44A-1-11).

Chapter 6.2 Transferring Jurisdiction to another court

There may be circumstances that arise after your appointment as a guardian or conservator, such as a change of your or the protected person's residence, where you may want to consider asking the court to transfer the guardianship and/or conservatorship case to another court in a different county or to a different state.

To transfer a case out of state, specialized laws of West Virginia must be followed. These laws, called the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, can be found beginning with WV Code Section 44C-1-1. Consultation with an attorney is recommended.

To transfer a case to another circuit court in a different county in West Virginia, you must file a request (called a motion) with the court currently handling the case and provide evidence to the court that the transfer would be in the best interests of the protected person. The court is only allowed to transfer the jurisdiction of the case to another court if it appears to the court that the interests of the protected person would be best served by the transfer. A hearing will be set before the court and you will need to explain to the court under oath why the transfer is in the best interests of the protected person.

If the transfer is allowed, the guardian and/or conservator must report to the court assuming jurisdiction and any changes to the appointment will be made by that court.

Chapter 6.3 Return of missing persons

What if I am a guardian or conservator for a missing person and he or she reappears?

A conservatorship terminates when a missing person is located. The court must, however, still prepare a termination order dismissing the case and discharging any bond, so you will need to bring the matter before the court for conclusion.

For a guardianship, the matter must be brought back to the court if guardianship is no longer necessary upon the reappearance of a missing person.

For death of a missing person, see "What If The Protected Person Dies?" in this chapter.

Chapter 6.4 Reasons for removal of Guardian or Conservator

Any interested person can ask the court to remove you for any of the following reasons:
Guardian:

Neglecting the care and custody of the protected person or legal dependents
Failure to file reports

Conservator:

Wasting or mismanaging the estate
Unreasonably withholding distributions or making distributions in a negligent or reckless manner
Failure to file accountings

Both:

Acting under an order entered by misrepresentation or mistake
Conviction of a crime reflecting upon fitness to perform
Having an interest adverse to the faithful performance of your duties to the protected person
Failure to file bond as ordered
Avoiding service of process or notice
Failure to comply with court orders
Illness
Incapacity or inability to perform duties
Abusing powers or failing to discharge duties
Not acting in the best interests of the protected person or of the estate

Chapter 6.5 Reasons to change or end the Guardianship or Conservatorship

What If The Protected Person Improves And No Longer Needs A Guardian or Conservator?

Reasons to change or end the guardianship or conservatorship include:

The protected person no longer needs the assistance or protection of a guardian or conservator
The protection or assistance previously granted is either too much or too little, considering the current needs of the protected person
The protected person's understanding or capacity of the following has significantly changed:
- To provide for his or her health, care or safety
- To manage his or her estate and financial affairs
No suitable guardian or conservator can be secured who is willing to exercise the assigned duties
It is otherwise in the best interests of the protected person

Chapter 6.6 What if you can no longer serve?

There are a number of circumstances that warrant changing, modifying or ending your status as a guardian or conservator. This can be accomplished by you or the protected person, or any other interested person, by filing a petition with the court.

A petition form is available in the office of the circuit clerk. You must petition the court at least 60 days before the date of your resignation. The court will grant you permission to resign, except for good cause, and will appoint a suitable successor.

Your appointment as a guardian or conservator can be terminated if:

It is so ordered by the court
You are granted permission by the court to resign
You are removed for any of the reasons mentioned above
The protected person dies

Chapter 6.7 Nominating a successor

You may be able to nominate a successor guardian or conservator for the court to consider to protect the protected person should something happen to you and/or you have to resign.

Good Practice:
In both your will and in a separate writing, you can nominate a successor guardian or conservator. You must include a brief statement of the reason or reasons for the nomination.

Chapter 6.8 Who is qualified to serve as a Guardian or Conservator?

Any adult may be appointed as a guardian or a conservator, or both, upon determination by the court.

The court determines if an individual is capable of providing an active and suitable program of guardianship or conservatorship for the protected person, and requires that the individual is not employed or affiliated with any person that is providing substantial services or financial assistance to the protected person.

In the event that a family member, friend or other qualified individual is not available to be appointed by the court, the law provides for other agencies or entities that the court can designate to assume the responsibility.

Alternatives:

Office of Adult Protected Services
Providing support for individuals who are not legal dependents
Certain non-profit corporations licensed by the state
County Sheriff

It is important for any guardian or conservator to consider the protected person's maximum self-reliance and independence. A protected person is entitled to have his or her needs met in the least restrictive manner possible.

In appointing an individual to serve as a guardian or conservator, the court will consider these factors, as well as the suitability of the proposed guardian or conservator and the limitations of the protected person.

The court will select an individual or entity qualified to act in the best interest of the protected person and will consider such factors as:

Geographic location
Family or other relationship
Ability to carry out duties
Commitment to promoting the protected person's welfare
Any potential conflicts of interest
Recommendations of relatives

Chapter 6.9 What if the protected person dies?

A guardianship or conservatorship terminates with the death of the protected person (see next section on funeral arrangements and autopsy). However, the guardian or conservator must file the certified death certificate of the protected person with the circuit clerk and must file a final guardian report and/or conservator accounting.

In the case of a missing person, a certified death certificate must be produced or the person must be presumed dead under W.Va Code §44-9-1, et. seq. for the conservatorship to terminate.

Chapter 6.10 Funeral arrangements and autopsy

If there is no advance directive or preneed burial or cremation contract, the guardian has authority to make decisions regarding the body of the protected person for autopsy and funeral arrangements after the protected person dies.

If there is no guardian, a conservator has this authority. This authority continues until an executor, executrix, administrator or administratrix is appointed.

Chapter 6.11 Who must you notify if you bring any matter back to the court?

Unless the court excuses notice for good cause shown, notice of hearing must be personally served on the protected person and mailed, certified mail return receipt requested, to:

Appointed counsel or attorney of record
All those individuals listed in the original petition to appoint
Any facility responsible for care and custody of the protected person
The guardian or conservator, if not the person bringing the matter back to the court
Anyone else the court may order

Chapter 6.12 Miscellaneous Helpful Information

For general information about guardianship, conservatorship and alternative decision-making:

Complete this tutorial - You can also receive a copy of this tutorial in paper form; to do so, contact the Mental Hygiene Division of the Supreme Court and ask for the Guardianship And Conservatorship Training Manual.
State law for guardians and conservators is contained in Chapter 44A, Articles 1-5 of the West Virginia Code

6.12a County Senior Centers

Contact the senior center in your county

6.12b Regional Area Agencies on Aging

Contact the regional Area Agency on Aging that is nearest you

Chapter 6 Self-Test

Read through each question and test your knowledge on Chapter 6: Future Changes, the "What If". To check your answers, click the answer immediately following each question.

1. If you move from West Virginia after being appointed as a guardian or conservator, what action must you take?

Nothing except take the protected person with you
You are required to resign your position
You must file a designation of an agent who does reside in WV to accept service of process

2. If you want to resign as a guardian or conservator how much notice must you give when filing your petition request to resign with the court?

3 Months
30 Days
60 Days

3. You can nominate a successor guardian or conservator in your will.

True.
False

4. What must you file with the court if the protected person dies?

A copy of the death certificate
Only the certified death certificate
Both the certified death certificate and the final guardian report and/or conservator accounting

5. If a preneed burial or cremation contract exists for the protected person, the guardian has no authority to make decisions after the death of the protected person regarding funeral arrangements.

True.
False

6. If an autopsy is needed and there is no advance directive regarding the same, the guardian has authority to make decisions after the death of the protected person for autopsy.

True
False

7. If there is no guardian, who has authority to make funeral arrangements and decisions for autopsy after the death of the protected person?

The conservator, provided there is no advance directive or preneed burial or cremation contract
The family, if any
No one until an executor or administrator is appointed

8. If it is in the best interests of the protected person, a guardianship or conservatorship case can be transferred to another court in West Virginia.

True
False

9. If a protected person who is a missing person is found, your responsibilities as a guardian or conservator immediately end.

True
False

10. Any interested person can ask the court to remove you from your position as guardian or conservator if grounds for removal exist or are alleged.

True
False

Chapter 6 - Answer Sheet

MENTAL HYGIENE AND GUARDIAN ONLINE TRAINING

Table of Contents

Chapter 1. So You've Been Selected for Appointment. What Next?

Chapter 2. General Information Concerning Guardianship and Conservatorship

Chapter 3. What NOT TO DO as a Guardian or Conservator

Chapter 4. Duties of a Guardian

Chapter 5. Duties of a Conservator

Chapter 6. Future Changes, "What If"

Chapter 1. So You've Been Selected for Appointment. What Next?

Chapter 1.1 Filing Affidavit of Mandatory Education

Chapter 1.2 Posting Bond

Chapter 1.3 Taking the Oath of Office

Chapter 1.4 Required Notifications You Must Make After Appointment

Chapter 1.5 Reimbursement of Filing Fees

Chapter 1.6 Paying the Protected Person's Appointment Counsel

Chapter 1.7 Set Up a File

Chapter 1 Self-Test

Chapter 2. General Information Concerning Guardianship And Conservatorship

Chapter 2.1 Protected Person

Chapter 2.2 Guardian

2.2a Limited Guardian

2.2b Temporary Guardian

Chapter 2.3 Conservator

Chapter 2.4 Co-Guardians and Co-Conservators

Chapter 2.5 Compensation

Chapter 2.6 Advance Directives

Chapter 2.7 Reports and Accountings

Chapter 2.8 Law Governing Procedure for Appointment

Chapter 2 Self-Test

Chapter 3. What You Must NOT Do As A Guardian Or Conservator

Chapter 3.1 Employment Or Affiliation Limitations

Chapter 3.2 Do Business With Or Profit

Chapter 3.3 Make Loans To Self

Chapter 3.4 Use Funds For Defense Of Wrongdoing

Chapter 3.5 Be A Creditor

Chapter 3.6 Fail To File Conservator Accountings And Guardian Reports

Chapter 3.7 Embezzled Or Concealed Funds

Chapter 3.8 Misappropriation Or Misuse Of Funds Or Assets

Chapter 3.9 Elder Neglect

Chapter 3.10 Elder Abuse

Chapter 3 Self-Test

Chapter 4. Duties of a Guardian

Chapter 4.1 Duties of a Guardian

Chapter 4.2 Caring for the protected person

Chapter 4.3 Contact with the protected person

Chapter 4.4 Consider the protected person in decisions

Chapter 4.5 What actions require prior court approval?

Chapter 4.6 Liability/Fiduciary Duty

Chapter 4.7 Reporting Requirements

4.7a Yearling Reporting

4.7b What do I report?

Chapter 4 Self-Test

Chapter 5. Duties of a Conservator

Chapter 5.1 Duties of a Conservator

Chapter 5.2 Conservator's Inventory

Chapter 5.3 Recommendation of good record keeping

Chapter 5.4 Spending the protected person's money

Chapter 5.5 Considerations when making financial decisions

Chapter 5.6 Powers of Attorney

Chapter 5.7 Management Powers and Duties

Chapter 5.8 Abandoning Property

Chapter 5.9 What requires court approval?

5.9a Sale of Real Estate

5.9b Mortgage of Real Estate

Chapter 5.10 Accounting Requirements

5.10a Yearly Accountings

5.10b What to include in the accounting

5.10c Actions required of the fiduciary commissioners.

5.10d Waiver of Accountings

5.10e What the Court considers for waiver

Chapter 5.11 Conflicts of Interest

Chapter 5.12 Liability

5.12a Successor Liability

Chapter 5 Self-Test

Chapter 6. Future Changes, The "What If"

Chapter 6.1 You move from WV to another state

Chapter 6.2 Transferring Jurisdiction to another court

Chapter 6.3 Return of missing persons

Chapter 6.4 Reasons for removal of Guardian or Conservator

Chapter 6.5 Reasons to change or end the Guardianship or Conservatorship

MENTAL HYGIENE AND GUARDIAN
ONLINE TRAINING