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EspañolWhat is a financial exploitation protective order?
A financial exploitation protective order is a civil court order that protects an elderly person, a “protected person,” or an incapacitated adult from an abuser who has committed financial exploitation. You do not have to have a specific relationship with the abuser to get an order.1
1 W. Va. Code § 55-7J-1(a)
What is the legal definition of financial exploitation?
Financial exploitation is when someone:
- steals or misuses your money or assets on purpose (“intentional misappropriation”); or
- reduces your assets (“diminishment”) by influencing you to act against your own free will (“undue influence”).1
Financial exploitation does not include when a person makes an honest effort to help you manage your money or other things of value but you end up losing money.1
1 W. Va. Code § 55-7J-1(b)(3)
Who is eligible for a financial exploitation protective order? Who can file the paperwork?
You may be eligible for a financial exploitation protective order if you are a victim of financial exploitation and you are:
- an elderly person;
- a “protected person;” or
- an incapacitated adult.1
An elderly person is someone who is 65 or older.2
An incapacitated person is an adult who cannot physically perform the daily activities needed to stay alive and healthy because of a physical or mental condition or other sickness.3
A protected person is an adult who a judge has found to be unable to take in and consider information effectively or respond to people, events, and environments due to a mental impairment. A protected person does not have the ability to:
- take care of his/her health, care, safety, daily living, and therapeutic needs without assistance; or
- manage his/her property or financial affairs, provide for his/her support, or provide for the support of legal dependents without assistance.4
Anyone who believes that an elderly person, protected person, or incapacitated adult is suffering financial exploitation due to the intentional misappropriation or misuse of funds or undue influence can file the paperwork for a protective order on behalf of the victim.5
1 W. Va. Code § 55-7J-1(a)
2 W. Va. Code § 55-7J-1(b)(2)
3 W. Va. Code § 61-2-29(a)(4)
4 W. Va. Code § 44A-1-4(13)
5 W. Va. Code § 55-7J-1(c)
What types of financial exploitation protective orders are there? How long do they last?
There are two types of orders: temporary financial exploitation protective orders and permanent financial exploitation protective orders.
A temporary financial exploitation protective orders can be issued ex parte from the magistrate court. Ex parte means that the respondent is not notified beforehand and is not present at the hearing.1 If the magistrate court grants your temporary protective order, the clerk will transfer the case to the circuit court in your county. After the case is transferred, a clerk at the circuit court will schedule a hearing for a permanent order to take place within 20 days.2
After a hearing, the circuit court judge can issue a permanent financial exploitation protective order if s/he believes that the order is necessary to protect you. A permanent order does not have an expiration date. The judge must also find that:
- the respondent committed an act that falls under the legal definition of financial exploitation; and
- there is reason to believe the financial exploitation will continue without an order.2
The judge can issue an order “on consent” without finding that the respondent committed financial exploitation if the respondent agrees to have the order issued against him/her.2
In addition to the protective order, it’s possible to petition the court to freeze the assets of the person committing the financial exploitation in an amount equal to the alleged value of lost property or assets so that these assets can be used to pay back the victim for the value of his/her lost property or assets. Upon a finding that the elderly person, protected person, or incapacitated adult has been formally exploited, the judge can:
- grant injunctive relief, which means ordering the respondent to do or stop doing something;
- order the respondent to put money in escrow in an amount equal to the value of the assets that were exploited;
- order the respondent to return any property that was wrongly taken; or
- provide for the appointment of a receiver.3
1 W. Va. Code § 55-7J-1(d)
2 W. Va. Code § 55-7J-1(e)
3 W. Va. Code § 55-7J-5(a)
In which county should the protective order be filed?
The protective order should be filed in the magistrate court or circuit court in the county where:
- the elderly person, protected person, or incapacitated adult lives; or
- the financial exploitation occurred.1
1 W. Va. Code § 55-7J-1(c)
