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Introduced Version Senate Bill 106 History

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sb106 intr
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.

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