Senate Bill No. 106
(By Senator Facemyer)
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[Introduced February 9, 2005; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact §44-10-2, §44-10-3, §44-10-8 and
§44-10-9
of the Code of West Virginia, 1931, as amended, all
relating to clarifying the process of appointing guardians of
minors.
Be it enacted by the Legislature of West Virginia:
That §44-10-2, §44-10-3, §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 shall under the provisions of
section one of this article renounce renounces the trust, or fail
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 circuit court or family 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
nominated by the minor's father
and mother, if both are living or a suitable person nominated by
the minor's surviving parent. Where the minor's father and mother
do not 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) Within five days of the filing of a petition for the
appointment of a guardian, the circuit clerk shall notify the
court. The court shall hear the petition for the appointment of a
guardian within ten days after the petition is filed.
(c) The 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 court to resign and the 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 court stating that the
minor is no longer in need of the assistance or protection of a
guardian.
(d) A guardianship may not be terminated by the 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.
§44-10-8. Disbursements and expenditures by guardians from income
and corpus of estates of infant wards.
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. 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. 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.
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. 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 the 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 with responsibility for 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
shall be so are allowed, the 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
or her
estate.
NOTE: The purpose of this bill is to clarify the process for
appointment of guardians of minors.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.