Spec Pro last part notes.doc

8/16/2019 Spec Pro last part notes.doc

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Guardianship

What is “Guardianship?It is the power of protective authority given by law and imposed on anindividual who is free and in enjoyment of his rights over one whoseweakness on account of age or other infirmity renders him unable to protecthimself. It is basically procedural but could also be natural, say for parentalauthority. he basis in guardianship is parens patriae.

Who is a guardian?It is a person in whom the law has entrusted the custody and control of the

person or estate or both of an infant, insane or other person incapable ofmanaging his own affairs.

What are the kinds of guardians?1. Legal Guardian- without need of judicial appointment, guardians by

operation of law, e.g. parents.

!atural guardian cannot dispose of the property of theirchildren" only judicial guardian if with written authority fromthe court. his is because under the law, a parent actingmerely as legal administrator of the property of his#herchildren, hence does not have the power to dispose of oralienate the property of said minor without judicial approval.

$or guardianship of minors, the parents shall post a bond if

the market value of the child’s properties or income exceeds P50,000 and the bond shall not be less than 10 of the valueof the properties or income.

2. Judicial Guardian- appointed by the court in a judicial proceedingfor legal guardianship.3. Guardian ad litem- appointed by courts of justice not necessarily in

a guardianship proceeding, because this guardian ad litem is only on atemporary basis with a specific duty to perform.

Which court has jurisdiction over a petition for guardianship?

%nder &' ()*+, it is eclusively and originally cogni-able by the $amilyourt /& designated as such0.

Where is the venue?

he venue is the residence of the ward. 1owever, if the ward has no residenceand the guardianship application is over the property of the ward, the venue iswhere the property is situated#located. his is so because, the guardian wouldnormally go to the ward since their relationship is temporary in charactercompared to adoption in which the adoptee becomes the child of the adopter.

2ifference between Guardianship of 3inors (AM No. 03-02-05-!" and Guardianship of Incompetents (#ule $2-$%"

alient &oints Guardianship o' Minors ( AM No. 03-02-05-

SC)

Guardianship o' ncompetents ( Rule 92-97 of

the Rules of Court)

)ho are su*+ect to guardianship, 3inors who are below 4( years old, which could be overtheir person or property or both

Incompetents who are5 !Le&N4. hose suffering from penalty of !ivil

interdiction.

6. hose hospitali-ed Le pers.

). &rodigals / spendthrift!.

7. eaf and dumb who are unable to read and write.

8. hose of nsound mind though they may have

lucid intervals.

*. 9ersons Not of unsound mind but by reason of

age, disease, weak mind and other similar causes

cannot without outside aid, take care of

themselves and manage their property.

)hich court has +urisdiction, $amily ourt of the province or the city where the minoractually resides.

If non:resident, with the $amily ourt of the 9rovince or

If resident, & of the place where he resides.If non:resident, & where his property is situated.

; "f the incompetent transferred his bona#fide residence


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city where his property or any part thereof is situated.

; %I@!'&A &%>< applies suppletorily.

within the Philippines, the court having cogni$ance of a

guardianship proceeding ma% transfer the same to the

court of another province wherein the ward ac&uired real

propert%, the latter court to continue the proceeding

without requiring p!"ent of ##itionl $ourt fees.

)ho ma/ 'ile petition 'or guardianship, #M

4. 'ny relative,

6. ther person on behalf of a minor ). Minor himself if 47 years of age or over

7. ecretary of ocial Welfare and 2evelopment

8. ecretary of 1ealth in case of an insane minor.

If resident,

#

4. 'ny relative,

6. f riend ). other person on behalf of a resident incompetent

7. fficer of the $ederal 'dministration of the %'

in the 9hil.

8. irector of 1ealth in favor of an insane person or

isolated leper.

• 'he father and the mother shall jointl% exercise

legal guardianship over the person and propert%

of their minor child without the necessit% of a

court appointment.

If non:resident,

#

4. 'ny relative

6. friend of such non:resident person

). 'ny other person interested in his estate in

epectancy or otherwise.

; &arents as guardians

If property of the incompetent is 6,BBB or less: the father

or mother without the necessit% of court appointment shall

be his legal guardian

If the property of the incompetent is more than 6,BBB: the

father or mother shall be considered as guardian being a

judicial guardian not an%more a legal guardian.

)hat are the grounds 'or 'iling petition 'or

guardianship,Ceing a 3I!@& will not suffice, because the followingconditions should also be considered5

u#eest

4. eath, continued absence or incapacity of his

parents

6. uspension, termination or deprivation of

parental authority

). #emarriage of his surviving parent, if the latter is

found unsuitable to eercise parental authority

7. When the *est interest of the minor so reDuire.

he I!@39)ho ma/ *e appointed guardian o' the person or

propert/ or *oth o' the minor,

here is an ## #N! to be followed5

4. 9arents or a court:appointed guardian.6. In default of the above guardians, the surviving

grandparent.

here is no such order of preference.

; he appointment of guardian is 2I&


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). he oldest brother or sister of the minor over (1

%ears of age unless unfit or disDualified.

7. he actual custodian of the minor over (1 %ears

of age unless unfit or disDualified.

8. 'ny other person who in the sound discretion of

the court would serve best interest of the minor.

4uali'ications o' Guardian- M&-#ALA

4. Moral haracter 6. &hysical, 3ental and 9sychological ondition

). inancial tatus / present "')!

7. # elationship of trust with the minor

8. Availability to eercise the powers and duties of

guardian

*. Lack of onflict of interest with the minor

E. A bility to manage the property of minor.

3'!2'@&A.

)hat are the contents o' the petition and its

attachment reuired */ la6,

he rule reDuires the petition to be verified and

accompanied by certification against forum shopping.

1owever, no defect in the petition or verification shall

render F@I2 the issuance of letters of guardianship.

JAG #7N

4. Jurisdictional facts

6. !ame, age and residence of the prospective ward

). Ground#s rendering the appointment necessary or

convenient

7. !ames, ages and residences of # elative within

the 7th degree of minor

8. 9robable 7alue, character and location of the

property of the minor

*. Name, age and residence of the person for whom

letters of guardianship are prayed for.

he rule reDuires the petition must be verified.

JNN

4. Jurisdictional facts

6. ncompetency rendering the appointmentnecessary or convenient

). Name, ages and residences of the relatives of the

incompetent

7. 9robable value and character of his state

8. Name of the person for whom letters of

guardianship are prayed.

)hat are the procedures in8ol8e, 9ime and Notice o' :earing !otice must be given to persons named in the petition and

to the minor if over 47 years of age.

If the minor is above 47 years old, notice to him is

jurisdictional. !on:compliance with this renders the

proceeding null and void.

!ase tud/ #eport

he court shall order a social worker to conduct a case

study of the minor and all prospective guardians and

submit his report and recommendations ) days before

hearing to the court for its guidance before scheduled

hearing.

pposition to &etition

Notice reuirement !otice shall be served to /40 persons mentioned in the

petition residing in the 9hilippines" /60 incompetent. here

is no notice reDuirement for publication

, e;cept in case of

a non:resident incompetent.

his service of notice is mandatory and jurisdictional.

his latter is also known as, ancillar/ guardianship

which refers to the guardianship in a state other than that

in which guardianship is originally granted.

pposition

'ny interested person may oppose by5

4. filing a written opposition contesting the petitionon the grounds of5 /40 competency of the alleged

incompetent" /60 unsuitability of the person for


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'ny interested person may oppose by5

4. filing a written opposition which need not beverified on the grounds5 /40 majority of the

alleged minor" and /60 unsuitability of the person

for whom letters are prayed for.

6. 9ray that the petition be denied or prayer that

letters of guardianship issue to himself or to any

suitable person named in the opposition.

whom letters are prayed for"

6. 9ray that the petition be dismissed or that letters

of guardianship issue to himself or to any suitable

person named in the opposition.

:earing and rder 'or Letters to issue

't the hearing, the alleged incompetent must attend if able

to attend and it must be shown that the reDuired notice has

been given.'ppointing of a suitable guardian for incompetent.

er8ice o' Judgment

$inal orders or judgments shall be served upon the civil

registrar of the 3unicipality or ity where the

incompetent resides or where his property is located.

)ho are reuired to 'ile a *ond, And ho6 much,

)here to *e 'iled, n case o' *reach< 6here to *e

prosecuted,

Cefore a guardian appointed enters upon the eecution of

his trust or letters of guardianship issue, he shall give a

bond in the amount set by the court.

Cefore a guardian appointed enters upon the eecution of

his trust or letters of guardianship issue, he shall give a

bond in the sum as the court directs.

' new bond is reDuired and discharge of the sureties onthe old bond from further liability, after due notice to

interested parties, 6hen no in+ur/ can result to those

interested in the estate.

he bond shall be filed in the office of the clerk of court.

In case of breach, to be prosecuted in the same proceeding

or in separate action for the use and benefit of the ward.


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)hat 6ill *e the purpose o' the posting o' a *ond,

And 6hat are the conditions corresponding such

*ond,

!onditions= A&

4. o make and return to the court within ) months,

a true and complete nventory of all the estate of

his ward which shall come to his possession or

knowledge or to the possession or knowledge of

other person.

6. o aithfully eecute the duties of his trust, to

manage and dispose of the estate according to

these rules.). o render a true and just Account of all the estate

of the ward in his hands at the time designated by

the rules and at the epiration of his trust.

7. o &erform all orders of the court by him to be

performed.

; onds o' parents as guardians o' the propert/ o' the

minor

he parents shall post a bond if the market value of the

child’s properties or income exceeds P50,000 and the

bond shall not be less than 10 of the value of the

properties or income. his amount may not be cash, could be surety bond.

&urpose o' the *ond

$or the protection of the property of the minor or

incompetent to the end that he may be assured of an

honest administration of his funds.

;'he bond of the guardian is a continuing one against the

obligors and their estates until all conditions are fulfilled.

*ence, the mere fact that the defendant was removed as

guardian did not relieve her or her bondsmen fromliabilit% during the time she was dul% acting as such

guardian.

!onditions= A&

8. o make and return to the court within ) months

,

a true and complete nventory of all the estate of

his ward which shall come to his possession or

knowledge or to the possession or knowledge of

other person.

*. o aithfully eecute the duties of his trust, to

manage and dispose of the estate according to

these rules.E. o render a true and just Account of all the estate

of the ward in his hands at the time designated by

the rules and at the epiration of his trust.

(. o &erform all orders of the court by him to be

performed.

)hen 6ill selling and encum*ering o' the properties o'

the 6ard ALL),

&#NAL &#9>- sell @!>A

#AL &#9>- sell or encumber

Grounds 'or selling or encum*ering minor?s properties

4. When the income of estate is insufficient to

maintain and educate ward when a minor"

6. When it appears that it is for the benefit of theward.

&eriod allo6ed

he authority to sell or encumber shall not etend beyond

one year unless renewed by the court.

&#NAL &#9>- sell @!>A

#AL &#9>- sell or encumber

Grounds 'or selling or encum*ering the estate o' the

incompetent

4. When the income of an estate is insufficient to5

a. maintain the ward and his familyb. maintain and educate the ward

c. when it appears that it is for the benefit of the

ward that his real estate or some part thereof be

sold, mortgaged, or encumbered and the proceeds

thereof put out at interest or invested in some

productive security. &urpose, $or the

management< in8estment and disposition of the

estate and effects of the ward.

; "t must be through a verified petition filed to the court

setting forth the facts and pra% for an order issue

authori$ing the sale or encumbrance. Noti$e must be given to next of kin. + hearing must be done to show cause

wh% petition should -' be granted.


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Ne;t o' @in refers to those relatives who are entitled to

share in the estate of the ward. !otice to net of kin and

other interested persons is %&I2II@!'>.

&eriod to sell or encum*er

he authority to sell or encumber shall !@ etend

beyond one year unless renewed by the court.

)hat is the remed/ o' the person against the rder o'

the court authoriing the sale o' the 6ard?s propert/,

'ppeal from such order.

&resumptions

4. When within 4 year from the granting of the

@rder of ale, it is presumed that if the property

was !@ @>2 within 4 year, the ward has

sufficient income.

6. here being presumption that the sale of thewardHs estate is F'>I2. 1ence, it cannot be

attacked collaterally in the registration proceedings. #emed/, $iling a separate action to

'F@I2 or &


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)hat are the po6ers and duties o' guardians, General po6ers e;tend

4. are and custody of the person of his ward and

the management of his estate

6. 3anagement of his estate

peci'ic po6ers

4. 9ay the just debts of the ward: personal estate

and income of his real estate first, if insufficient,

second sale or encumbrance of real estate.6. ettle accounts, collect debts /demand, sue for,

and receive debts due him! with the approval of

the court, compound and give discharges to the

debtor on receiving a fair and just dividend of

the estate! and appear in actions for ward.

). o manage the estate of the ward frugally and

without waste.

7. o join in an assent to a partition of real or

personal estate.

8. &ender inventory of the estate of the ward within

) months, being sworn to with appraisals of those

properties already in the possession of ward or to be possessed.

)hat i' a person is suspected to ha8e em*eled<

concealed or con8e/ed a6a/ the propert/ o' the 6ard

he court may cite the suspected person to appear for

eamination.

:o6 much 6ill *e the compensation o' guardians,

It shall be allowed reasonable epenses in the eecution of

his trust and also compensation for his services, not

exceeding 15 of the net income of the ward.

General po6ers e;tend

). are and custody of the person of his ward and

the management of his estate

7. 3anagement of his estate

peci'ic po6ers

*. 9ay the just debts of the ward: personal estate

and income of his real estate first, if insufficient,

second sale or encumbrance of real estate.E. ettle accounts, collect debts /demand, sue for,

and receive debts due him! with the approval of

the court, compound and give discharges to the

debtor on receiving a fair and just dividend of the

estate! and appear in actions for ward.

(. o manage the estate of the ward frugally and

without waste.

+. o join in an assent to a partition of real or

personal estate.

4B. &ender inventory of the estate of the ward within

) months, being sworn to with appraisals of those

properties already in the possession of ward or to be possessed.

)hat i' a person is suspected to ha8e em*eled<

concealed or con8e/ed a6a/ the propert/ o' the 6ard

he court may cite the suspected person to appear for

eamination.

;he court here cannot actually order the delivery of the

wardHs property found to be embe--led B!&9 when

the title of the ward to the same is clear and indisputable.

'bsent any, the recovery must be made in a separate

proceeding.

:o6 much 6ill *e the compensation o' guardians,

It shall be allowed reasonable epenses in the eecution of

his trust and also compensation for his services, not

exceeding 15 of the net income of the ward.

)hen 6ill guardianship *e terminated, )hat are the

grounds,

Grounds 'or #emo8al or #esignation o' Guardian-

MA

4. When the guardian becomes nsane or otherwise

incapable of discharging his trust.

6. When found to be thereafter nsuitable.

). When he waster or Mismanaged the property ofthe ward.

7. 1as failed to rendered an Account or make a

)ho ma/ 'ile 'or petition (%erifie# &! oth) that

competenc/ *e +udiciall/ determined,

4. Incompetent

6. Guardian

). &elative, or

7. $riend

; 'fter the hearing for Duestion as to the competency of


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return )B days after it was due.

;Cefore a motion for removal or resignation may be

granted, guardian must submit the proper accounting of

the propert% of the ward and the court to approve the

same.

Grounds 'or 9ermination o' Guardianship

4. he ward has come of age6. 1e has died

;!o motion for removal of guardian unless the latter has

submitted proper accounting and such was approved by

the court.

/uardianship’s termination ma% be either motu proprio or

b% a verified motion b% an% person allowed to file the

same petition on the grounds of majorit% or death of the

ward, notif%ing the court within 10 da%s from such fact.

the alleged incompetent, if it be found that he is no longer

competent, his competency shall be adjudged and the

guardianship shall cease.

Grounds 'or #emo8al or #esignation- MA

8. When the guardian becomes nsane or otherwise

incapable of discharging his trust.

*. When found to be thereafter nsuitable.

E. When he waster or Mismanaged the property ofthe ward.

(. 1as failed to rendered an Account or make a

return )B days after it was due.

;' guardian may be allowed to resign when it appears

proper and the court will appoint another in his place.

Grounds 'or 9ermination o' Guardianship o'

ncompetent

4. ompetency of the ward

6. Guardianship no longer necessary

). 2eath of guardian7. 2eath of Ward *owever, if the guardian is +-

the heir of the ward, going back to settlement and

of estate and terminating the present on#going

guardianship would be taxing!

)ho ma/ oppose the termination o' guardianship,

4. Guardian

6. &elative of the ward

). 'ny other person in the direction of the court

)hat 6ill *e the #M> o' the guardian 'rom an

order o' remo8al,'ppeal.

)hat 6ill accompan/ the termination o' guardianshipC

e''ects thereto,

4.


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er8ice o' Judgment

$inal orders or judgments shall be served upon the civil

registrar of the 3unicipality or ity where the

incompetent resides or where his property is located.

i''erences *et6een stateEntestate !ourt 'rom Guardianship !ourt

stateEntestate !ourt /&ule E):+B0 Guardianship !ourt /&ule +6:+E0'pplication of tatute of !on:claims !on application of tatute of !on:claims

an pass upon the merits of the claim annot pass upon the merits of the claim

ale of personal properties first /&ule (+0 ale of personal properties or income of real properties first /&ule +80

Cond 2


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'bandoned child: refers to one who has !@ proper parental care or guardianship or whose parents have deserted him for a period o' at least F continuous months

and has been judicially declared as such.

!eglected child: refers to one whose basic needs have been deliberately !@ '

; o be abandoned, you must have been neglected first.

hild:placement agency: refers to an agency duly licensed and accredited by the 2epartment to provide comprehensive child welfare services including but notlimited to receiving applications for adoption, evaluating the prospective adopters and preparing home study reports.

hild:caring agency: refers to an agency duly licensed and accredited by the 2epartment that provides 67:hour residential care services for abandoned, orphaned,neglected or voluntarily committed children.

$oundling ertificate: this is in lieu of birth certificate because no parents care or known for the child. ogether with your petition for adoption, you can attach thisand in your petition pray for the change of such certificate without 3'&GI!'> !@


11/18

(#A 552" 1$$5 (#A 0H3" (AM No. 02-F-02< August 22<

2002"7enue in 'iling petition 'or adoption ; $amily ourts of the province or city

where the prospective adoptive parents

reside.

$amily ourts having jurisdiction over the

place where the child resides or may be

found.

@r could be filed directly with the Inter:

ountry 'doption Coard.

!omposition o' the oard

4. ecretary of 2epartment as ex#officio hairman

6. * other members to be appointed

by the 9resident for a

nonrenewable term of * years

a. 4 psychiatrist or psychologist

b. 6 lawyers /Dualification of &

udge0

c. 4 registered social worker

d. 6 representatives from !G@engaged in child:caring and

placement activities

!ompensation

4,8BBB per meeting, not more than 7

meetings a month

$amily ourts of the province or city

where the prospective adoptive parents

reside.

)ho ma/ adopt, 4. 'ny ilipino citien which has

the following Dualifications5

a. of legal age

b. in possession of full civil capacity

and legal rights

c. of goof moral character d. has not been convicted of any

crime involving moral turpitude

e. emotionally and psychologically

capable of caring for children

f. at least 4* years @>2


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with the means of the family

6. 'ny alien possessing the same

Dualifications as above,

9&@FI2aws.

with the means of the family

8. 'ny alien possessing the same

Dualifications as above,

9&@FI2


13/18

; >oint parental authorit% shall be

exercised b% the spouses.

). If the spouses are legally separated from

each other.

spouse has signified consent thereto"

; >oint parental authorit% shall be

exercised b% the spouses.


each other.

)ho ma/ *e adopted, 4. 'ny person below 4( years of age

who has been voluntarilycommitted or judicially declared

available for adoption

6. >egitimate child of one spouse,

by the other spouse

). Illegitimate child by a Dualified

adopter to raise the status of the

former to that of legitimacy

7. 9erson of legal age regardless of

civil status, if prior to the

adoption, said person has been

consistently considered and

treated by the adopters as theirown child since minority

8. hild whose adoption has been

previously rescinded

*. hild whose biological or

adoptive parents have died"

provided, that no proceedings

shall be initiated within * months

from the time of death of said

parent

@nly legally free child may be subject of

inter:country adoption.

4. 'ny person below 4( years of age

who has been voluntarilycommitted or judicially declared

available for adoption

6. >egitimate child of one spouse,

by the other spouse

). Illegitimate child by a Dualified

adopter to raise the status of the

former to that of legitimacy

7. 9erson of legal age regardless of

civil status, if prior to the

adoption, said person has been

consistently considered and

treated by the adopters as theirown child since minority

8. hild whose adoption has been

previously rescinded

*. hild whose biological or

adoptive parents have died"

provided, that no proceedings

shall be initiated within * months

from the time of death of said

parent

E. hild not otherwise disDualified

)hose !onsent is necessar/ 'or the

adoption,

Written consent of the following is

reDuired54. he adoptee, if 4B years of age or

over

6. Ciological parents of the child, if

known, or the legal guardian, or

proper government

instrumentality which has legal

custody of the child

). >egitimate and adopted children,

4B years of age or over of the

adopter and adoptee, if any

7. Illegitimate children, 4B years of

age or over, of the adopter, ifliving with said adopter and the

latterHs spouse

Written consent of their biological or

adopted children above 4B years of age, inthe form of sworn statement.

'ffidavit of consent of the following5

*. he adoptee, if 4B years of age orover

E. Ciological parents of the child, if

known, or the legal guardian, or

proper government

instrumentality which has legal

custody of the child

(. >egitimate and adopted children,

4B years of age or over of the

adopter and adoptee, if any

+. Illegitimate children, 4B years of

age or over, of the adopter, if

living with said adopter and thelatterHs spouse

4B. he spouse of the person to be


14/18

8. he spouse of the person to be

adopted

adopted

)hat are other reuirements as to

content o' the petition,

;ame with !ew &ules on 'doption supra Kualifications of being adopter, adoptee. he petition shall be verified and shall

specifically state at the heading of the

initiatory pleading whether the petition

contains an application for5

4. hange of name

6. &ectification of simulated birth

). Foluntary or involuntarycommitment of children

7. 2eclaration of child as

abandoned, dependent or

neglected

' adopter is a ilipino citien=

4. urisdictional facts

6. Kualifications provided beforeallowed to adopt, supra

' adopter is an alien=

4. urisdictional facts6. Kualifications to adopt while

being an alien, supra

' the adopter is a legal guardian=

he petition shall allege that guardianship

had been terminated and the guardian had

cleared his financial accountabilities.

' the adopter is married=

he spouse shall be a co:petitioner for

@I! '2@9I@! ecept5

4. If one spouse seeks to adopt thelegitimate child of one spouse by the other

spouse

6. If one spouse seeks to adopt his own

illegitimate child" provided, that the other

spouse has signified consent thereto"


each other.

' the adoptee is a 'oundling=

he petition shall allege the entries which

should appear in his birth certificate.

' the petition pra/s 'or !:ANG


15/18

NAM=

ause the reason for the change of name.

N GN#AL< N ALL &99N< it

shall allege the 'ollo6ing=

4. he first name, surname or names,

age, and residence of the adoptee

as shown by his records

/baptismal, birth, foundlingcertificate or school!

6. 'doptee not disDualified by law to

be adopted

). 9robable value and character of

the estate of the adoptee

7. he first name, surname or names

by which the adoptee is to be

known and registered in the ivil

&egistry

; 'lso, the certification of non:forum

shopping shall be included.

)hat are the anne;es to the petition, ;ame with 'doption of 3inors &ules,

supra

he application shall be supported by the

following documents written and officially

translated in


16/18

shall reDuire proof that the biological

parents have been counseled to prevent

him#her from making hurried decisions

caused by strain or anxiet% to give up the

child and sustain that all measures to

strengthen the family have been ehausted

and that stay of the child in the family is

inimical to his welfare.

!ase stud/.

uper8ised trial custod/.

''ects o' Adoption=

4. 'll legal ties between the

biological parents and the adoptee

shall be severed and the same to be

vested on the adopters

6. he adoptee to be considered the

legitimate child of the adopter for

all intents and purposes). 'doptee to have reciprocal rights

in succession as that of legitimate

child.

#ecti'ication o' imulated irths

' person committing such shall !@ be

punished if5

4. he simulation was for the benefit of the

child.

6. he child to be consistently considered

as their child

). he application for correction of the birth registration and petition for adoption

shall be filed within 8 years.

$amily ode must be ehausted.

he maimum number that may be

allowed for foreign adoption shall !@


17/18

certificate and a new birth certificate shall

be ordered.

;9: #!# A&9N

A# !NN9AL N NA9#.

#escission o' Adoption &etition

3ust be verified and filed by the

'2@9


18/18

Documents

Spec Pro last part notes.doc