NOV 23 – SPECPRO 2

Who can petition for an appointment of guardian? You have to distinguished

whether the guardian is ...*inaudible*......
But if the guardian is a relative, a resident then it can be any relative or any person
on behalf of the resident who is competent. 
Who can look for a guardian or parent? San mo ipepetition? Syempre sa court that
has jurisdiction for the appointment of a general guardian or for the person or
relative or State or both that is competent. It can be the officer of the federal
administration of the United States in the Philippines. They can also file a petition in
favor of a ward and the director of health in favor of an insane person who should
hospitalized or in favor of an isolated leper. 

So what should we contain in the petition? This is under section 2. So for the
appointment of a general guardian of course we have to always see the
jurisdictional facts. So the incompetence or the factual situation of the
incompetence rendering the appointment necessary then you have to mention the
names, the ages, and residences of the relatives and of those persons having them
in their care with respect to the minor, probable value, and the character of the
estate, and the the name of the person whom letters of guardianship is being
issued. Do we need the petition to be verified? Yes. However no defect in the
petition or verification that will render void the issuance of letters of guardianship.
So pag may na issue na di yan mavovoid ng defect sa petition. 

All right section 3, so just like in all of our other special proceedings, after you file
the petition and the court find it sufficient inform present in the court will fix the
time and date for hearing. And the court will cause notice of that time and hearing.
To whom? To the persons mention in the petition. including the incompetence
himself. The guardian also direct a general or special notice to be given. Now as I
said you need to give notice including to the incompetent himself. The service of
the notice On the incompetent, according to the Supreme Court, is Jurisdictional.
So without the notice on the incompetent himself the court will not acquire Any
jurisdiction to appoint a guardian. So the petition should not only be serve on other
interested parties but on the incompetent himself. 

So what is the objective of the court in that hearing? In that hearing the court first
determined whether there is compliance with the notice requirement, and then to
determined whether the person who is alleged to be a ward is really incompetent,
and has no capacity to care for himself and his properties. And then after You
determined that one is really incompetent the court determines who is qualified to
be appointed as the guardian.

Is it required that the creditors should be identified and notified the creditors of the
ward? Kasi dba dun sa settlement of estate natin and even in estate malalaman yan
ng mga creditor. It is not required in guardianship. Because their presence is not
really essential to the proceedings for the appointment of guardianship. Hindi sila
importante. And then after there is notice and the hearing will take place any
interested person can actually oppose the petition. But the petition is in writing and
then they can contest the petition. What would be the ground? The competence the
alleged incompetence, Or the person said to be requesting or the party asking that
the person to whom letters of guardianship be issued is actually unsuitable. The
oppositore can say ok wala syang kwenta pero ako may kwenta. So just like with
settlement of estate in opposing the administrator they can, the oppositore, can ask
the letters issued in his favor instead. So the oppositore  can actually Pray for the
dismissal of the Petition on the ground that the minor is not competent or they can
pray that letter of guardianship is issue for themselves or any other suitable
persons that they name in their opposition. So there will be a hearing of the petition
and the alleged incompetence must be present if able to attend. Alangan naman
hospitalized leper, hali ka magkalat tayo ng leper. What is important is that they
are given notice. So it must be shown that the required notice is given in that
hearing and the court will hear the evidence of the party so in respect to the
petition and opposition.

So the person who is incompetent the court can appoint a guardian of his person or
estate, or both. And then the powers and duties good we will be specified by court.
It is important to know that in the letters of guardianship that is where the powers
and the duties of the guardian will be mentioned, It’s not actually the same in all
instances because it can just be a guardianship over the property or over the
person and the court can give it, or specified to what extent the guardianship will
extend. So that is the process of a residence but what if there is a guardian for a
non-residence? So if the ward or person to be a ward is outside of the Philippines
but the estate or property is located in the Philippines, again the petition can be
filed by any relatives, Or friend of that person or anyone interested in the estate, in
expectancy syempre ksi buhay pa sya or otherwise. So they can petition the court
having jurisdiction for the appointment of guardianship for the estate. And then the
court will determine how notice will be given. So the rules say after notice to the
person in such manner that the court deems proper. So it is up the court how the
notice will be given so it will specify how it can be by publication considering that
the the person to be ward is not a resident. It says publication or otherwise. So it
depends upon the court. And then there will be a hearing and then the court will
just like with resident determine If the non-resident is incompetent that would
render a guardian necessary or convenient. And then the court may appoint a
guardian for such estate. And then any judgment or final order that is issued under
this rules of guardianship, in addition to the parties, it would also be served on the
civil registrar where the incompetent resides. Or where the property or *inaudible*
is situated. So people will be on notice as to who should they be dealing with with
respect to the property of the ward. 

So like I told you there will also be bonds in favor of the guardian. So the bond will
be given before the letter of guardianship will be issued.  So bago ka makakuha ng
letters of guardianship, bayad bayad ka muna. So before the guardian enters a
bond the execution of *inaudible* or letters of guardianship would issue he will give
a bond. And then the court will specify the sum and the terms and condition. So
ano ba ang terms and conditions? Medyo magkabarkada lang sila ng terms and
conditions ng bond ng administrator. So they will make and return to the court with
in three months inventory of the estate, both real and personal property must be
true and complete. Again guaranteed katulad sa settlement of estate, the inventory
includes those that which have come to his possession or knowledge of any other
person for him. And then he is conditioned on the faithful execution of the duties of
trust. So he will manage the esatate and disposed of the estate according to the
rules and to the best interest of the ward. And then of course he will provide for the
proper care, custody and education of the ward. And then just like in settlement of
a estate may accounting na magaganap nyan of all the estate of the ward in his
hands. The proceeds and interest derived from that estate, management, and
disposition.. all of those things when sya? When the court as provided under the
rules and when the court directs it. And then also upon the expiration of the trust
kailangan nyang e settle ang accounts nya and then deliver to the court and to the
estate money remaining in his hands. *inaudible* katulad ng settlement of estate
and all other duties or orders as may be required by the court for him to perform.
Naalala ko yung sa isang araw yung sa student ko nasa crimpro kami so tinatanong
ko, andun kami sa prosecution of crimes, kung sino yung makapagfile. So dba nasa
rules kapag yung mga private offenses mo dba it should be the private individual
pero pag di nya nagawa like kapag incompetent sya dba may order yan dba na
yung family mo, ur parents, ur grandparents etc.. tapos may guardian. So
tinatanong ko can it be a guardian of the galaxy? Sobrang seryoso yung student,
Yes Maam. Sabi ko ahhh. Bcos a guardian of the galaxy is a guardian and it falls
within the definition of the rules, Yes Maam. Moral dto wag magtanong wag tayo
magtatanong sa mga pelikula dahil hndi naman pala lahat ng studyante eh updated
sa mga pelikula...... *joke time!!!*.... 

So after the bond is posted by the guardian just like in letters of administration or
testamentary, the court can also require whenever it is deemed necessary iklian
yung bond. And it may discharge sureties on the old bond for for liability after due
notice to interested persons and by then walang injury mangyayari dun to those
interested in the estate. Where do u find the bond? Syempre dun sa Office of the
Clerk of Court. And in case of breach of the condition the court can prosecute
against that bond in the same proceeding dun sa guardianship. Pwde ring in a
separate action for the use and benefit of the ward, or any person legally interested
in the estate. Dba napag usapan natin dun sa settlement pwdeng hahabulin po iyan
for the responsibilities and breach of the conditions. 

Let’s go to rule 95. So dito tayo sa pag sell and encumber of the property of the
ward. So if the income is insufficient to maintain the ward and his family, Or if even
if it is not necessary for the income if it is not insufficient for the income but it is to
the benefit of the ward.. remember dun sa settlement of estate we two separate
sections for that; one if it is Insufficient to pay for the expenses, and another one
basta as long as it would be necessary or for the benefit of the ward. Dba where the
court exercises discretion. So not necessarily dahil kulang ang pera pero it would be
to the best interest of the estate. Naalala nyo yun? So ganun din sa guardianship.
So in such cases the court can order that the part of the estate or the real estate be
sold or mortgaged, or any way encumber. The court can also order that the
proceeds of those be invested or put out at interest. Or whatever in some
productive security. How can you ask for this? So just like in settlement of a estate,
dun yung administrator ay executor, dto it is the guardian. So the guardian will file
a verified petition. So the court where he will state the facts and state for the issue
authorizing the sale and encumbrance. So we will ask for the court to ehh court
pwde ba kami magbenta ganyan. So dba katulad sa settlement of estate kailangang
magpaalam ka so ganun din yan dito sa guardianship. Just because you are a
guardian it doesn’t follow that You can automatically sell, you need the approval of
the court. So if it is beneficial for the ward or it is necessary, so the court will
actually after you file the verified petition the court will make an order and
sasabihin ng court dun sa mga next of kin ng ward and all person thats interested
in the estate oy punta kayo dito hali ka discuss tayo. So they will appear at a
reasonable time and date that is specified in the order and then the court will direct
them to show cause why prayer for the petition for the sale and Encumbrance
should not be granted. In other words, sabihin nyo bakit di ko dapat grant to.
Oppose nyo, ganyan. So parang ganun. So at the time and date that is designated
in the order to show cause which is actually for them to oppose, the court will hear
the allegations of the petitioner which is the guardian

And also the next of kin or other interested person they can bring their respective
witnesses. And then the court will rule on whether to grant or refuse the prayer for
the sale or encumbrance. But the basis is determining the best interest of the ward.
And then if there is cause to the hearings the court can make an order as to that
also. So the court will fully examined the witnesses and then base on that if the
court determines that it would be necessary and beneficial to the ward the sale of
or encumbered the estate or just a part there. And then the court will just issue an
order for that. And then the court will mention that the proceeds san gagamitin.
Will it be for the maintenance of the ward or the family. The court can also order
that the proceeds be put on interest or investment. And then the court should also
in that order specify the cause why the sale or encumbrance is necessary or
beneficial. And then it will be either at a public or private sale. It is not mandatory
it’s in a public sale. So it can be disposed of either at public or private sale and then
the court will just provide conditions as to the time and the manner Of payment.
And then if the payment would be deferred then there would be security there of
depending on the discretion of the court on what Would be the most beneficial.

Now bond that originally given by the guardian will also stand as security for the
proper appropriation of the proceeds of the sale. Or the court can just require an
additional bond as a condition for the granting of the order of sale. So it really
depends on the discretion of the court. And again just like in settlement of estate
this discretion is not reviewable unless there is grave abuse of discretion amounting
to lack of or excess of jurisdiction. Tapos ito yung kakaiba look at Rule 95 section
4..

RULE 95, SEC. 4

No order of sale granted in pursuance of this section shall continue in force more
than one (1) year after granting the same, without a sale being had
Kung may order of sale, in effect lang siya within one year. Cannot go beyond.
Peculiar provision to guardianship
The Court can also require the guardian to invest the proceed of the sale or
encumbrances in any of the wards’ money. SAAN? Kahit ano. Can be in real estate
or otherwise whatever may be for the best interest of the ward. Then the Court will
then make order for the management investment in disposition of the effects as the
circumstances may require

General Powers and Duties of Guardians

The guardian has care and custody of the person of the ward and the management
of the estate. Included therein is kapag nawala ang care and custody sayo
(misplaced or nawala).
To recover your rightful right to the custody, you bring an action for Habeas Corpus
because Habeas Corpus extends to all cases of illegal consignment or detention by
which the person having rightful custody over a person is withheld.
Example: Judicial Guardian ka, ikaw yung appointed, you are duty bound to protect
and care the ward. For you to perform your obligation, you need to have in your
custody of the ward.
If you are unduly deprived of the custody of the ward, you bring an action for
Habeas Corpus.
Hindi lang siya for minors applicable. Care and custody is not just over a person of
the ward. Kasama na yung managament of the estate.
If the incompetent is outside or a non-resident of the Ph, hindi siya magiging
Guardianship Over the Person because the Court cannot acquire jurisdiction over
that ward. If non-resident, mageextend lang siya sa property, hanggang estate
lang.
And then the guardian was paid the wards’ debts. Saan manggagaling? Personal
muna and then income of the estate. Pag kulang, out of the real estate pero
kailangan ng Order of the Court to sale or to encumber the real estate. And then
the guardian has to settle the account, collect debts, and then appear for and
represent the ward in all actions and special proceeding and then the Court
appoints another person for that purpose. And then the guardian manages the
estate of the ward frugally. Matipid, hindi magastos. It should be without waste.
And then the guardian must apply the income and profit to the comfortable and
suitable maintenance of the ward and his family if there is any that applies. Then
apply the proceeds of the sale or encumbrance to the maintenance. This case
presupposes that the Court already approved the sale or encumbrance.

Section 5, Rule 96 -
The court may authorized the guardian appointed to join or agree to a partition of
real or personal estate where it is owned in common or the ward is a co-owner.
Very specific to partition of property where the co-owner is the ward but this
authority may only be granted by the Court after notice and hearing. Kanino yung
notice? To the relatives of the ward or to whoever the Court may direct. Then it is
also granted only after the Court has careful investigation as to the necessity and
propriety of the proposed action. Bakit? Kasi it involves the property of the ward.
Even if co-owned, you also need to determine whether it is for the well-being or the
interest of the ward.
Section 6 
The guardian or ward, or of any person having actual or prospective interest in the
estate of the ward as creditor, heir, or whatever can file a complaint that they are
suspecting someone of having embezzled, concealed, or conveyed away money
goods interest or written instrument that belongs to the ward or his estate. So
you’re not just complaining against the Guardian; any person suspected of having
performed those acts. In such case, the Court may file the person suspected again
to appear for examination. (Katulad ng settlement of estate, mag-aappear lang siya
for examination.) But additionally, the Court may make orders to secure the estate
against that embezzlement, concealment, or conveyance.

This provision is similar to the one on settlement of cases where the person is to
illicit information, secure evidence. But if they want to file a criminal action for the
one who embezzled, then they have to file a separate case. Not in Guardianship
Proceeding because here in this Court is one of limited jurisdiction. The
Guardianship Court is not the proper court.
If there is an issue also on the person claiming to be the owner, alleged to have
been embezzled, of the property, that should be a separate case. Guardianship
Court is not the proper forum to determine ownership of the property claimed by
third person or the guardian for the ward.
The purpose of the Rules is to secure evidence. The purpose of that examination is
merely to secure evidence of the person suspected of embezzling, concealing or
conveying. Then they can file a separate action.
Exception: If the property being concealed, embezzled, or conveyed, not really
claimed to belong to a third person, so there is no issue of ownership, and it is
determined from examination where it is, the parties can arise at a compromise
with respect to that property which can later on be subject to the approval of the
Court.

We said that there is an obligation to make an inventory within 3 months after the
appointment. But just like in settlement of estate, it is not within 3 months after the
appointment, it can also be annually after the appointment. Also, if an interested
person makes an application, pwede irequire to make an account. And then the
inventory must be sworn through by the guardian. And then the inventory should
put an appraisal. Sa appraisement of value, the court may request just like in
settlement of estate the assistance of one or more inheritance tax appraisers
because math is hard. And if later on, there is property that is discovered that was
not part of the inventory or the heir inherited some property that was not included
in the inventory or it was later acquired, there will be an inventory including those
items that were not previously included. Then is it within 3 months from the
discovery of such succession or acquisition. 1 year from the appointment after that
*inaudible* “explanation and wherein the court” as often as the court would
require, the guardian is required to present to the Court for the settlement and
allowance of that account. In the settlement of account, the guardian who is not a
parent, will be allowed *inaudible* expenses incurred in the execution of the trust
and compensation. Again, hindi kasama ang parents. Magkano? Not exceeding 15%
of the net income of the ward.
Does it matter if it is guardianship over the property or limited to the persons of the
ward? Sabi ng rule, the guardian is award that compensation without any
distinction as to what kind of guardianship.
Is it required na mareceive ay 15%? Hindi. Maximum lang siya.

Termination of Guardianship
A petition should be filed. Who files it? Relative or even the guardian himself or a
friend. Pwedeng yung ward din kapag competent na siya. Sasabihin nila na “petition
to have the competence determined”. Its not automatic termination. You need as a
ground to provide that there is competence of an incompetent already. So you want
to the court to judicially determine the competence. And then the petition is
verified.
Just like with others, the Court fixes the time and date of hearing. And then notice
to the guardian and the person declared as incompetent. There will be a trial. Any
other person that the Court may allow, they can contest the right to the release
from which is the termination of guardianship. The court can examine the witnesses
and the parties. It can be done by the court even on its own motion. If the court
finds that the incompetent is no longer incompetent, then the court will judicially
determine his competence or adjudged his competent. In which case, wala na
guardianship. It will cease.

Paano naman pag nagresign or be removed? Pwede naman. If yung guardian

mismo yung nag waste or mismanaged ng estate or hindi siya nag make ng return
for 30 days/13 days after the court ordered the rendering of count, the Court will
just upon reasonable notice to the guardian, the Court will may remove him. In
doing so, the Court will require them to surrender the estate of the ward. A
guardian may resign. Again, it is subject to the Court’s action to appoint another in
its place.

Are the grounds under Section 2 for the removal of the guardian exclusive? NO. It
is not an exhaustive enumeration of the grounds. It uses a more general and
inclusive expression. So madaming grounds as long as it falls within “unsuitable”.

Since the rule enumerates grounds for removal of a guardian, it means that a
guardian cannot be legally removed from office except for causes. Hindi pwedeng
trip lang. Kailangan mo ng reason unless mag resign ang guardian, hindi mapipilit.
There has to be sufficient grounds for removal. If you’re gonna say it’s unsuitable
for discharging the trust, that is discretionary. But that discretion must be exercised
in accordance with the law. It has to without grave abuse of discretion amounting
to lack or excess of jurisdiction. But the ground of unsuitable or incapable of
discharging the trust is sufficient ground except that it can be exercised arbitrarily,
there must be basis for that claim. This removal and even the appointment is
dependent again on the discretion of the court and we do not interfere with that
except it there is grave abuse of discretion amounting to lack or excess of
jurisdiction.

Even the ward himself can file for the termination of guardianship.
Any judgment will be served on the civil registrar kung nasaan nakatira ang
incompetent or where the property is situated.