W. Va. R. Fin. Exploitation P. 2

(a) "Diminished capacity" means the inability to address, avoid, prevent or stop financial exploitation because of physical, mental or emotional conditions

(b) "Department" means the West Virginia Department of Health and Human Resources.

(c) "Elderly person" means a person who is 65 years or older.

(d) "Financial exploitation" or "financially exploit" means the intentional misappropriation or misuse of funds or assets or the diminishment of assets due to undue influence of an elderly person, protected person, or incapacitated adult, but may not apply to a transaction or disposition of funds or assets where the respondent made a good faith effort to assist the elderly person, protected person, or incapacitated adult with the management of his or her money or other things of value.

(e) "Financial exploitation protective order" refers to the order entered after a §55-7J-1(e) hearing in circuit court.

(f) "Incapacitated Adult" means any person eighteen years of age or older who by reason of advanced age, physical, mental or other infirmity is unable to carry on the daily activities of life necessary to sustaining life and reasonable health.

(g) "Protected person" means an adult individual, eighteen years of age or older, who has been found by a court, because of mental impairment, to be unable to receive and evaluate information effectively or to respond to people, events, and environments to such an extent that the individual lacks the capacity: (A) To meet the essential requirements for his or her health, care, safety, habilitation, or therapeutic needs without the assistance or protection of a guardian; or (B) to manage property or financial affairs or to provide for his or her support or for the support of legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgment, alone, is not sufficient evidence that the individual is a protected person within the meaning of this subsection. “Protected person” also means a person whom a court has determined is a missing person.

(h) "Temporary protective order" refers to the temporary protective order entered after a W. Va. Code §55-7J-1(e) hearing in magistrate court.

(i) "Undue influence" means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether alleged financial exploitation was produced by undue influence, all of the following may be considered:

(j) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, diminished capacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.

(k) The influencer’s apparent authority. Evidence of apparent authority may include but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, intimate partner, or other qualification.

(l) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep; use of affection, intimidation, or coercion; or initiation of changes at inappropriate times and places, and claims of expertise in effecting changes.

(m) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences of the victim any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship. Evidence of an inequitable result, without more, is not sufficient to prove undue influence.