Guardianship

Procedure

Filing of petition [Sec. 1, Rule 93]

↓
Court issues order setting time for hearing
[Sec. 3, Rule 93]
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Reasonable notice to the incompetent and persons mentioned in the petition
Notice by publication or otherwise if incompetent is a nonresident [Sec. 3, Rule 93]
↓
Filing of written opposition [Sec. 4, Rule 93]
↓
Hearing where the alleged incompetent must be present if able to attend [Sec. 5,
Rule 93]
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If person in question is incompetent, court appoints a suitable guardian of his person or
estate, or both [Sec. 6, Rule 93]
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Final orders and judgments shall be served upon the civil registrar of the municipality or
city where the incompetent resides or where his property or part thereof is situated
[Sec. 8, Rule 93]

GUARDIANSHIP

 A trust relation of the most sacred character, in which one person, called a
“guardian” acts for another called the “ward” whom the law regards as incapable
of managing his own affairs.
 A guardianship is designed to further the ward’s well – being not that of the
guardian. It is intended to preserve the ward’s property, as well as to render any
assistance that the wards personally require.

BASIS OF GUARDIANSHIP

 Where minors are involved, the State acts as parens patriae. It is the duty of
protecting the rights of persons or individuals who because of age or incapacity
are in an unfavorable position vis-à-vis other parties.

GUARDIAN

 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 of managing his own
affairs.
 KINDS OF GUARDIAN

1. General Guardian – one whose responsibility is over the person of the ward or
over his property
2. Limited Guardian – responsibility is over the property only.
3. Legal Guardian – a person who, without the need of judicial appointment is
designated as such by provision of law as in the case of the parents over the
persons of their minor children; no need for a court appointment
4. Judicial Guardian – a court appointed guardian
5. Guardian Ad Litem – any competent person appointed by the court to prosecute
or defend a minor, insane or person declared to be incompetent, in an action in
court.

WHO IS A MINOR?

 A person below 18 years of age.

WHO IS AN INCOMPETENT?

1. Those suffering from the penalty of Civil Interdiction

2. Hospitalized lepers
3. Prodigals
4. Deaf and Dumb and who are unable to read and write
5. Those of unsound mind though they may have lucid intervals
6. Persons not of unsound mind but by reasons of age, disease, weak mind and
other similar causes, cannot without outside aid, take case of themselves and
manage their property.

NOTE: In Uy v. Court of Appeals, 346 SCRA 247 – The Supreme Court has
considered a person in comatose or semi – comatose condition, a victim of stroke or
cerebrovascular accident without motor and mental faculties and with diagnosis of brain
stem infract as “incompetent”
That a finding that a person is incompetent should be based on clear, positive
and definite evidence.

1) Distinguish the rules on guardianship for minors and guardianship for

incompetent.

Minors Incompetent who are not minors

As to venue
The petition may be filed with the: The petition may be filed with the:

If the minor is: If the incompetent is:

1. RESIDENT: Family Court 1. RESIDENT: RTC

1. NON – RESIDENT: Family 2. NON – RESIDENT: RTC where
 Court where the property of the the property of the incompetent
minor is situated. is situated.

NOTE: R.A. 8369 (Sec. 5) which NOTE: Rule 92 Sec. 1 of the Rules of
established the Family Courts. Court provides that if the jurisdictional
However, if there are no Family amount exceeds that of the jurisdiction
Courts in that area, it shall be of the MTC.
adjudicated to the RTC.
NOTE: Sec. 19, B.P. 129 – RTC has
original and exclusive jurisdiction: (7)
In all civil actions and special
proceedings falling within the
exclusive original jurisdiction of a
Juvenile and Domestic Relations
Court (now R.A. 8369 on Family
Courts) and of the Courts of Agrarian
Relations as now provided by law
As to persons who may petition for appointment of guardian
1. Any relative; 1. Any relative;
2. Other person on behalf of the 2. Friend;
minor; 3. Other person on behalf of the
3. Minor himself if 14 years of age resident incompetent who has
or over; and no parents or lawful guardian;
4. Secretary of Health and by the 4. Director of health in favor of an
Secretary of Social Welfare insane person who should be
hospitalized or in favor of an
isolated leper; and
5. Any person interested in the
estate of a non-resident
incompetent.
As to contents of the petition for guardianship
1. Jurisdictional facts; 1. Jurisdictional facts;
2. Name, age, and residence of 2. Incompetency of the person
the prospective ward; rendering the appointment of a
3. Ground rendering the guardian necessary or
appointment necessary or convenient;
convenient; 3. Probable value and character
4. The death of the parents of the of his estate;
minor or the termination, 4. Names, ages, residences of the
deprivation or suspension of relatives of the incompetent as
their parental authority; well as the persons who took
5. Remarriage of the minor’s him under their care;
surviving parents; 5. The names of the person for
6. Names, ages, and residences whom letters of guardianship
of relative within the 4th civil are prayed.
degree of minor and persons
 having him in their custody;
7. Probable value, character and
location of the property of the
minor; and
8. Name, age and residence of
the person for whom letters of
guardianship are prayed
As to grounds for termination of Guardianship
1. The ward has come of age; 1. Competency of the ward has
2. Death of the ward; and been judicially determined;
3. Death of the guardian 2. Guardianship is no longer
necessary;
3. Death of the ward; and
4. Death of the guardian

JURISDICTIONAL FACTS OF THE PETITION:

1. INCOMPETENCY or MINORITY of the ward

2. The fact that the ward is domiciled in the Philippines or the fact that
the ward is a non – resident but has properties in the place where the
petition was filed
3. Names, ages and residences of the relatives of the incompetent or the
minor and the person having him in their care
4. The probable value of his estate
5. Name of the person for whom letters of guardianship are prayed for.

REQUIREMENT AS TO FORM

 As to form, the petition must/ shall be verified and a certificate against forum
shopping must be attached.
 However, failure to attach a verification will not in any way affect the proceeding
as the Rules on Civil Procedure are applicable as far as practicable to the Rules
on Special Proceedings provided it does not obstruct the proceedings.

WHO MUST BE SERVED WITH NOTICES?

1. Persons mentioned in the petition residing in the Philippines

2. The ward

Q. The general rule on notice is that it must be served personally upon the person
to be notified. When is resort to notice by publication necessary?

A. In cases where the ward is a non – resident. (Sec. 6, Rule 93 & Sec. 12 A.M. No. 03-
02-05-SC)
Q. Suppose, the incompetent is an insane person, upon whom shall the notice be
served?

A. The notice shall be served upon the director of the hospital where the incompetent is
confined will suffice.

Q. Is notice to the creditors of the ward required?

A. Notice to creditors is not required under the Rules. (Alamayari v. Pabale, G.R. No.
151243, April 30, 2008)

SOCIAL CASE STUDY REPORT

In guardianship of minors, the court shall require a social worker to conduct a

case study of the minor and all the prospective guardians and submit his/ her report and
recommendation to the court for its guidance before the scheduled hearing.

CAN THE COURT ORDER THE DELIVERY OF PROPERTY OF THE WARD FOUND
TO BE EMBEZZLED OR CONCEALED?

Generally, the guardianship court exercising special and limited jurisdiction

cannot actually order the delivery of the property of the ward found to be embezzled or
concealed.

Only in extreme cases, where property dearly belongs to the ward or where his
title thereto has been judicially decided, may the court direct its delivery to the guardian.

2) What happens to the petition if there is an opposition? What are the

grounds for opposition?

ANSWER: RULE 93. Section 5. Hearing and order for letters to issue . — At
the hearing of the petition the alleged incompetent must be present if able to
attend, and it must be shown that the required notice has been given. Thereupon
the courts shall hear the evidence of the parties in support of their respective
allegations, and, if the person in question is a minor, or incompetent it shall
appoint a suitable guardian of his person or estate, or both, with the powers and
duties hereinafter specified.

MINORS

Grounds for opposition to petition of guardianship of minors

1. Majority of the alleged minor; or

2. Unsuitability of the person for whom letters are prayed for (Sec. 10, A.M.
No.03-02-05-SC).
 Who may file the opposition?

Any interested person may contest the petition by filing a written

opposition and pray that the petition be denied, or that letters of
guardianship issue to himself, or to any suitable person named in the
opposition (Sec. 10, A.M. No. 03-02-05-SC; Sec. 4, Rule 93).

NOTE: If the interested person is a creditor and mortgagee of the estate of

the minor, he cannot be appointed guardian of the person and property of
the latter.

Contents of opposition to the petition

1. Grounds relied upon;

2. Prayer that the petition be denied; or
3. Prayer that letters of guardianship issue to himself or to any suitable
person named in the opposition.

INCOMPETENT

Grounds for opposition to petition of guardianship of an incompetent:

1. competency of the alleged incompetent; or

2. incompetency of the person for whom letters are prayed. (Sec. 4, Rule
93).

Who may file the opposition?

Any interested person in the property and/or in the person of the

incompetent may file an opposition to the petition for the appointment of
guardian.

NOTE:
 The opposition however must be in writing. It need not be verified.
 In the opposition, the person interested may pray that the petition
be dismissed or that letters of guardianship be instead issued to
him or any suitable person named therein
 Nonetheless, if the interested person is a creditor and mortgagee of
the estate of the minor, he cannot be appointed guardian of the
person and property of the latter. No man can serve two masters.

At What Stage of the Proceedings an Opposition may be Filed?

Opposition to the appointment of a person as guardian ad litem

should be first addressed to and resolved by the lower court and not for
 the first time on appeal. Such opposition may also be ventilated on appeal
in the event that the lower court makes an unfavorable decision thereon.

Q. If there is no opposition, should the court still receive evidence for the
petitioner?

A. The court shall receive the evidence of the petitioner even if there is no
opposition.

3) If the court will decide on petition for guardianship, what are the 2 basic
matters that is to be determined by the court in any guardianship
proceedings (minor or incompetent)?

The court, in guardianship proceedings is solely concerned with the:

1. Whether the ward is a minor or an incompetent; and

2. Whether the prospective guardian is qualified to become the
guardian of the ward.

NOTE: Conflicts regarding ownership or title to property in the hands of a

guardian, in his capacity as such should be litigated in a separate
proceeding.

The objectives of a Regional Trial Court hearing a petition for

appointment of a guardian under Rule 93 of the Rules of Court is to
determine:

1. Whether the person is indeed a minor or an incompetent who

has no capacity to care for himself and/or his Properties; and
2. Who is most qualified to be appointed as his guardian.

4) Factors to consider in appointing a guardian, are these mandatory?

Qualifications of guardians
(Sec. 5, A.M. No.03-02-05-SC)

(MALFRAP)

1. Moral character;
2. Availability to exercise the powers and duties of a guardian for the full
period of the guardianship
3. Lack of conflict of interest with the minor; and
4. Financial status;
5. Relationship of trust with the minor;
6. Ability to manage the property of the minor; and
7. Physical, mental, and psychological condition
 NOTE: THESE ARE NOT MANDATORY. But these are considered by the court
in determining whether the guardian is qualified. The primary consideration in a
guardianship proceeding is for the “BEST INTEREST OF THE CHILD.”

Factors to consider in appointing a guardian

(Francisco v. Court of Appeals, G.R. No. L-57438, January 31, 1984)

(FSTMPPP)

1. Financial situation;
2. Sound judgment;
3. Trustworthiness;
4. Moral character;
5. Physical condition;
6. Present and past history of prospective appointee; and
7. Probability of his being able to exercise the powers and duties of guardian
for the full period during which guardianship is necessary.

5) As to the preference of guardian for a minor, is the preference under Sec. 6

of A.M. NO. 03-02-05-SC mandatory?

Sec. 6. Who may be appointed guardian of the person or property, or both,

of a minor.

In default of parents or a court-appointed guardian, the court may appoint

a guardian of the person or property, or both, of a minor, observing as far as
practicable, the following order of preference:

1. the surviving grandparent and in case several grandparents

survive, the court shall select any of them taking into account all
relevant considerations;
2. the oldest brother or sister of the minor over twenty-one years of
age, unless unfit or disqualified;
3. the actual custodian of the minor over twenty-one years of age,
unless unfit or disqualified; and
4. any other person, who in the sound discretion of the court, would
serve the best interests of the minor.

NOTE: Depending on the circumstance, the court may decide the preference of a
guardian on a case-to-case basis. Hence, NOT MANDATORY.

For example, the surviving grandparent might be alive but lacks the
physical capacity to take care of the child.
 Another example, the oldest brother or sister over 21 years old might have
the capacity to take care of the child but is not present in the Philippines.

BONDS OF GUARDIAN

Q. Before the letters of guardianship issue and the guardian commence the
performance of his trust, what is required of the person so appointed as
guardian?

A. Before a guardian enters upon the execution of his trust, or letters of guardianship
issue he shall give a bond, in such sum to be determined by the court.

Q. What is the purpose of the bond?

A. For the protection of the property of the incompetent to the end that he may be
assured of an honest administration of his funds.

The bond is subject to the following conditions:

(REASO)

1. Return – to make and return to the court within 3 months a true and complete
inventory
2. Execute – to faithfully execute the duties of his trust
3. Account – to render a true and just account
4. Settle – to settle his accounts with the court at the end of his trust
5. Orders – to perform all orders of the court by him to be performed

NOTE: The bond of the guardian is a continuing bond against the obligors and their
estates until all of its conditions are fulfilled.
The mere fact that the guardian was removed as such would not relieve the said
guardian or his bondsman from liability during the time he/ she was duly acting as such
guardian.

PARENTS AS GUARDIANS (SEC. 16 RGM)

If the market value of the property or the annual income of the child exceeds
P50,000.00, the parent concerned shall furnish a bond in such amount as the court may
determine, but in no case less than 10% of the value of such property or annual income,
to guarantee the performance of the obligations prescribed for general guardians.

Q. WHAT ARE THE JURISDICTIONAL REQUIREMENTS IN A PETITION TO SELL

OR ENCUMBER THE PROPERTY OF THE WARD?

A. The following:
 1. The petition must be VERIFIED
2. NOTICE must be given to the next of kin
3. There must be a HEARING so that the allegations in the petition

Q. WHAT IS MEANT BY “NEXT OF KIN”?

A. READ: Lopez v. Teodoro, G.R. No. L-3071, May 29, 1950 – NEXT OF KIN does
not mean the next of kindred but pertains to those relatives who are entitled to share in
the estate of the ward under the Law on Intestate Succession.

NOTE:
 Notice to the next of kin and interested persons is jurisdictional.
 Failure to notify the next of kin shall be a ground for dismissal of the petition
(Singco v. Longa, G.R. No. L-27962)

Q. What must the order granting the petition contain?

A. Sec. 4
The order allowing the petitioner to sell or encumber the properties of the ward
must specify the grounds for allowance of the sale of encumbrance.
The court, if necessary, may direct that the estate be sold publicly or privately,
the court may also require an additional bond.

Q. Is the authority to sell without limit as to time?

A. The authority to sell/ encumber the property of the ward shall NOT EXTEND FOR
ONE YEAR unless renewed by the court.

Q. May the guardian acquire by purchase the property of the ward authorized by
the court to be sold?
A. Art. 1491, New Civil Code: The guardian, among others, cannot acquire by
purchase even at public or judicial auction, either in person or through the mediation of
another, the property of the person or persons who may be under his guardianship.

FLOW: SELLING OR ENCUMBERING THE PROPERTY OF THE WARD

1. Verified petition for leave to sell or encumber the estate of the ward
a. Grounds must be sufficiently alleged, as follows:
i. Insufficiency of the income of the estate to maintain/ support the
ward and his family;
ii. Selling/ encumbering (mortgaging) is for the benefit of the ward.
The proceeds are put out at interest or invested in productive
activity.

2. Notice is given to the next of kin and other interested persons

3. There must be a hearing

a. The court shall ascertain and the movant/ applicant must show cause/
prove why the petition should be granted/
 i. The petitioner, next of kin and other interested persons must be
heard/
b. If there is an opposition, the oppositor must be heard.

4. Resolution/ Order
a. The court may GRANT or DENY the petition.

POWERS AND DUTIES OF GUARDIANS

1. To pay the debts

2. To settle accounts
3. Collect debts
4. Appear in actions
5. Frugally manage the estate
6. To join in partition proceedings
7. Render to the court an inventory
8. To have care and custody of the person of the ward.

6) Grounds for termination of guardianship, is termination of guardianship the

same with removal of guardian?

Grounds for termination of guardianship of a minor

1. The ward has come of age;

2. Death of the ward; and
3. Death of the guardian

Grounds for termination of guardianship of an incompetent

1. Competency of the ward has been judicially determined;

2. Guardianship is no longer necessary;
3. Death of the ward; and
4. Death of the guardian

Termination of guardianship is not the same as removal of a guardian.

Grounds for removal of guardianship over minors and incompetents

1. Insanity;
2. Incapability or unsuitability for discharging his trust;
3. Wastage or mismanagement of the property of the ward; or
4. Failure to render an account or make a return for 30 days after it is
due (Sec. 2, Rule 97).

NOTE:
  The remedy of the guardian from the order of removal is to appeal (Olarte
v. Enriquez, G.R. No. L-16098, October 31, 1960).
 The guardian may file a petition before the guardianship court for
permission to resign his trust, stating the grounds therefore, and
accompanied by a report of the state of his account and an offer to settle
the account and deliver the estate over the court (Herrera, 2005).

Special Disqualification

1. Non-residence of the guardian;

2. Advance age of the guardian; and
3. Judges, clerks of court and lawyers

7) Remedies of an aggrieved party in case of opposition or denial of the

petition for guardianship.

1. File a motion for new trial or reconsideration (Rule 37)

 Motion for New Trial (Grounds)

a) Fraud, accident, mistake or excusable negligence

b) Newly discovered evidence

 Motion for Reconsideration (Grounds)

a) Award of damages is excessive

b) Insufficiency of evidence to justify the decision
c) Decision is contrary to law.

2. File an appeal (ordinary appeal or petition for review as the case may be).