Senate Bill No. 696
(By Senator Craigo)
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[Introduced February 18, 2002; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact sections two, three, four, six, eight,
nine and fifteen, article ten, chapter forty-four of the code
of West Virginia, one thousand nine hundred thirty-one, 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 appointment by last will and testament of parent.
Be it enacted by the Legislature of West Virginia:
That sections two, three, four, six, eight, nine and fifteen,
article ten, chapter forty-four of the code of West Virginia, one
thousand nine hundred thirty-one, 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 renounce the trust, or fail to
appear before the county court commission before whom such will
shall be 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 void.
§44-10-3. Appointment of guardian by circuit court.
(a) The county commission 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) The county commission 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) A guardianship shall 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 not be
appointed by the court, or if the minor shall reside without the
state, or if, after being summoned, he the minor shall neglect 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 bond, or while there is no
guardian
, the circuit
court 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 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 or her ward's estate for any purpose, shall file in
such circuit court a petition, verified by his or her 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 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 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.
§44-10-15. Disbursement of funds of infant wards.
(a) In any such settlement, pursuant to the next preceding
section
fourteen of this article, wherein where the amount paid the
guardian does not exceed the sum of one thousand dollars, the circuit court or judge approving the settlement may, in its or his
discretion, dispense with, or withdraw a reference to a fiduciary
commissioner, authorize the disbursement of the fund so created by
the settlement, and may discharge the guardian and the surety on
his or her bond.
(b) In all such cases A certified copy of the order of the
circuit court or judge, as the case may be, issued pursuant to
subsection (a) of this section shall be recorded in the office of
the county clerk of the county commission wherein the guardian was
appointed.
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.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.