Mannix Porterfield
CHARLESTON — Four years of persistence finally paid off in Delegate Dave Perry’s resolve to make the crime of abusing or neglecting an incapacitated adult a more serious offense than existing West Virginia law spells out.
Perry initially offered his legislation in the 2005 session, only to watch it get swallowed up in an avalanche of bills that traditionally storms the process.
This year, the going was no less arduous.
There were seven or eight revisions, and even an effort by a fellow delegate, John Overington, R-Berkeley, to revive capital punishment — a failed attempt that sent the bill back to committee for another going-over.
A companion bill was offered in the Senate by freshman Sen. Bill Laird, D-Fayette, and, like Perry’s, was inspired by the death of an incapacitated adult when the former was sheriff. At the time, prosecutors discovered there was nothing in state Code that covered specific punishment for those who cause the death of adults unable to fend for themselves.
“There was nothing in the Code definitively,” Perry, D-Fayette, explained.
Concerns arose in the nursing home community as to just how the proposed law change would apply.
As things developed, Perry noted, the law wouldn’t punish a nursing home or employee performing normal tasks in such a setting, unless abuse and neglect was an intentional act.
“This was a premier piece of legislation for myself to have, along with 17 other bills on which I was the lead sponsor, especially after four years,” the delegate said.
“I was very much interested in seeing this come to fruition.”
In the final version that was sent to Gov. Joe Manchin’s desk, any caregiver who neglects such adults or knowingly allows someone else to do so is guilty of a misdemeanor, punishable by a fine of $100 to $500.
When abuse enters the picture, the penalty is a like fine, or a jail term of 90 days to one year, or both.
If the caregiver intentionally and maliciously abuses or neglects an incapacitated adult and causes injury, the crime then is elevated to felony status. The fine ranges from $100 to $1,000, along with a prison term of two to 10 years.
If the injury is serious, the fine can stretch to $5,000, and the guilty party can face a prison sentence of three to 15 years.
Another section of the legislation says nothing should be construed to mean that such adults are abused or neglected for the mere reason that the adult chose to rely on treatment by “spiritual means” in line with the tenets and practices of a “recognized church or religious denomination or organization in lieu of medical treatment.”
Nor would the proposed law apply if life-sustaining treatment is denied in accordance with the West Virginia Health Care Decisions Act.
If such adults die as a result of intentional and malicious neglect, that, likewise, becomes a felony, punishable by a maximum $5,000 fine and five to 15 years in prison. Identical penalties apply if the caregiver allows another person to prompt the death of an incapacitated adult by intentional and malicious neglect.
When abuse is intentional, malicious and fatal, either by the caregiver or someone he or she allows to commit the offense, the punishment calls for prison time only — a sentence ranging from five to 40 years.
Perry’s bill also covers theft from an incapacitated adult.
A caregiver who steals or misuses an adult’s money or assets worth less than $1,000 is guilty of a misdemeanor, punishable by a maximum $1,000 fine and up to a year in jail, or both.
If the adult’s money or assets misappropriated are worth more than $1,000, the act becomes a felony. The guilty can face a maximum $5,000 fine and a one-to-10-year prison term.
When the caregiver intimidates, hurts or threatens to harm an adult to get his or her hands on the victim’s assets, that, too, becomes a felony, with a maximum $5,000 fine and prison term of three to 15 years.
“I was real pleased this bill passed,” Perry said. “For the last two weeks, there were continued discussions and working and reworking on the bill.”
— E-mail:
mannix@register-herald.com
