H. B. 4580
(By Delegates Hall and Schoen)
[Introduced February 20, 2004; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §44-10-2, §44-10-3, §44-10-4, §44-10-6,
§44-10-8 and §44-10-9 of the code of West Virginia, 1931, as
amended, all relating to the appointment of guardians for
minors generally and providing for the appointment of
guardians for minors by the circuit court in certain
circumstances.
Be it enacted by the Legislature of West Virginia:
That §44-10-2, §44-10-3, §44-10-4, §44-10-6, §44-10-8 and
§44-10-9 of the code of West Virginia, 1931, as amended, be amended
and reenacted, all to read as follows:
ARTICLE 10. GUARDIANS AND WARDS GENERALLY.
§44-10-2. Appointment void for renunciation or failure to qualify.
The appointment of any person under the provisions of section
one of this article is void if the person appointed either:
(a) Renounces the trust;
(b) Fails to appear
before the county commission of the county
in which the will is recorded for probate within six months after
the probate of the will; or
(c) Fails to qualify by acknowledging acceptance of the trust
and by giving bond as provided in this article
.
§44-10-3. Appointment and revocation of guardian by county
commission.
(a) The county commission of the county in which the minor
resides, or if the minor is a nonresident of the state, the county
in which the minor has an estate, may appoint as the minor's
guardian a suitable person nominated by the custodial parent or
parents; or
(b) The circuit court may appoint a guardian for a minor if
the custodial parents cannot agree on the nomination of a guardian
or if there are no custodial parents living.
The appointment of the father or mother of the minor as
guardian shall receive priority consideration. However, in every
case, the competency and fitness of the proposed guardian and the
welfare and best interests of the minor shall be given precedence
by the court when appointing the guardian.
(b) (c) The circuit court, county commission, the guardian or
the minor may revoke or terminate the guardianship appointment
when:
(1) The minor reaches the age of eighteen and executes a release stating that the guardian estate was properly administered
and that the minor has received the assets of the estate from the
guardian;
(2) The guardian or the minor dies;
(3) The guardian petitions the county commission circuit court
to resign and the county commission circuit court
enters an order
approving the resignation; or
(4) A petition is filed by the guardian, the minor, an
interested person or upon the motion of the county commission
circuit court
stating that the minor is no longer in need of the
assistance or protection of a guardian.
(c) (d) A guardianship shall may not be terminated by the
county commission circuit court
if there are any assets in the
estate due and payable to the minor: Provided, That another
guardian may be appointed upon the resignation of a guardian
whenever there are assets in the estate due and payable to the
minor.
§44-10-4. Right of minor to nominate guardian.
(a) If the minor is above the age of fourteen years, he or she
may in the presence of the judge of the county circuit court, or in
writing acknowledged before any officer authorized to take the
acknowledgment of a deed, nominate his or her own guardian, who, if
approved by the court, shall be appointed accordingly.
(b) and If the guardian nominated by such the minor shall not be is not appointed by the court, or if the minor shall reside
without the state resides outside this state, or if, after being
summoned, he shall neglect the minor neglects to nominate a
suitable person, the court may appoint the guardian in the same
manner as if the minor were under the age of fourteen years.
§44-10-6. Curator; bond; powers and duties.
Until a guardian shall have given gives bond or, while there
is no guardian, the county commission or the circuit court may from
time to time, appoint a curator. The curator who shall give bond
as aforesaid, and during the continuance of his trust, shall have
all the powers, responsibilities and perform all the duties of a
guardian. and be responsible in the same way.
§44-10-8. Disbursements and expenditures by guardians from income
and corpus of estates of infant wards.
(a) No disbursements, beyond the annual income of the ward's
estate, shall be allowed to any guardian where the deed or will,
under which the estate is derived, does not authorize it, unless
the same shall have been authorized by the circuit court of the
county in which the guardian was appointed or qualified.
(b) Any guardian, who may desire to spend more than the annual
income of his ward's estate for any purpose, shall file in such
circuit court a petition, verified by his oath, setting forth the
reasons why it is necessary to make such expenditures, to which
petition the ward shall be made defendant.
(c) The court shall appoint a guardian ad litem for the ward,
who shall answer such petition, be present at the hearing, and
represent the infant. Five days' notice shall be given to the
defendant before such the petition can be is heard.
(d) At the hearing the evidence may be taken orally, and the
court, if satisfied that such the expenditure would be judicious
and proper, may grant the prayer of the petition. Such The
petition may be filed and heard before the judge of such the court
in vacation as well as in term time.
(e) In the settlement of the guardian's accounts no credit
shall be allowed him the guardian by the fiduciary commissioner or
the court for expenditures for his or her ward, except for
expenditures of the annual income of his the ward's estate and for
expenditures of such amounts of the principal of the ward's
personal estate as are authorized by the court as provided by this
section: Provided, That if the personal estate in the hands of the
guardian does not exceed in amount the sum of three thousand
dollars, disbursement may be made by the guardian from the corpus
of such the personal estate for the ward's maintenance and
education, after first securing the written approval so to do of
and from the fiduciary commissioner or the circuit court to whom in
which the settlement of the ward's estate was referred.
§44-10-9. Sale of personal estate to pay excess beyond income.
When any such disbursements shall be so under the provisions of section eight of this article are allowed, the circuit court
shall, if necessary, order the sale of such portions of the
personal estate of the ward as may be necessary to pay the balance
of such expenditures over and above the income of his the ward's
estate.
NOTE: The purpose of this bill is to provide that the circuit
court may appoint a guardian for a minor if the custodial parents
cannot agree on the nomination of a guardian or if there are no
custodial parents living.
§44-10-2 has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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