Senate Bill No. 234
(By Senator Facemyer)
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[Introduced January 20, 2004; referred to the Committee on the
Judiciary.]
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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 modifying procedures allowing
appointment of guardians for minor children; and transferring
duty of appointment from county commissions to circuit courts
except where parents agree to the appointment or where parent
make appointment by last will and testament.
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.
If any person so appointed in accordance with the provisions
of section one of this article shall renounces the trust, or fails to appear before the county court commission before whom such the
will shall be is proved, within six months after the probate
thereof, and declare his or her acceptance of the trust, and give
bond as provided in this article, such the appointment shall be is
void.
§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 minor's father and
mother, if both living. Where only one of the minor's parents is
alive, the county commission may appoint as the minor's guardian,
a suitable person nominated by the minor's surviving parent.
(b) Where the minor's father and mother cannot agree as to
whom to nominate as guardian, or where there is no surviving father
or mother, the circuit court 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. The father or mother shall receive
priority. 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 county commission, the circuit court, 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 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. and if
(b) If the guardian nominated by such the minor shall is not
be appointed by the court, or if the minor shall reside resides
without outside the state, or if, after being summoned, he the
minor shall 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, as the
case may be, may, from time to time, appoint a curator, who shall
give bond as aforesaid, and during the continuance of his or her
trust, have all the powers 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 may be allowed to any guardian where the deed or
will, under which the estate is derived, does not authorize it,
unless the same shall the disbursements 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 or her ward's estate for any purpose, shall file in
such the circuit court a petition, verified by his or her oath,
setting forth the reasons why it is necessary to make such the
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 the petition, be present at the hearing, and
represent the infant. Five days' notice shall be given to the
defendant before such the petition can may be 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 may 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 therefor from the fiduciary commissioner or the circuit court
to whom 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 in accordance with section eight
of this article shall be so 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
the expenditures over and above the income of his the
ward's estate.
NOTE: The purpose of this bill is to transfer the duty of
appointing guardians for minors from county commissions to circuit
courts, except where a parent has made the appointment in his or
her last will and testament or where the parents agree as to whom
shall be appointed.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.