Senate Bill No. 568

(By Senator Facemyer)

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[Introduced February 17, 2003; referred to the Committee on the Judiciary.]

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A BILL to amend and reenact sections two, three, four, six, eight and nine, 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 parents agree to the appointment or where parent makes appointment by last will and testament.

Be it enacted by the Legislature of West Virginia:
That sections two, three, four, six, eight and nine, 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 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 are 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 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 without outside 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 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 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 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.