ArticuLaw Primo
LSPU-LAW STAR CLASS
RULE 93
GENERAL GUARDIANS AND GUARDIANSHIP APPOINTMENT OF GUARDIANS
Prepared by: Rolando Bautista
Question: WHO MAY PETITION FOR APPOINTMENT OF GUARDIAN FOR RESIDENT?
- any relative(AM no.03-02-05 SC everyone within 4th civil degree in case of minor)
- friend or
- other person on behalf of a resident minor or incompetent who has no parent of lawful guardian
- or the minor himself if fourteen years of age or over
An officer of the Federal Administration of the US in the Philippines may also file a petition in favor of a ward thereof.
The Director of Health in favor of an insane person who should hospitalized or in favor of an isolated leper.
Art. 222 of the FC- The Court may appoint a guardian of the child’s property or a guardian ad litem when the best interest of the child so require.
Art. 223 of the Family Code
The parents or in their absence or incapacity, the individual entity or institution exercising parental authority may petition the proper court of the place where the child resides for an order providing for the disciplinary measure over the child.
The child shall be entitled to the assistance of counsel either of his choice or appointed by the court, and a summary hearing shall be conducted wherein the petitioner and the child shall be heard.
However if in the same proceeding, the court’s finds the petitioner at fault, irrespective of the merits of the petition, or when the circumstances so warrant, the court may also order the deprivation of parental authority or adopt such other measures as it may deem just and proper.
Contents of Petition
A petition for the appointment of general guardian must show, so far as known to the petitioner.
-the jurisdictional facts (the minority or incompetency of the person, his domicile)
- the minority or incompetency rendering the appointment necessary or convenient.
- the name, ages and residences of the relatives of the minor or incompetent and of the persons having him in their care.
- the probable value and character of his estate.
- the name of the person for whom letters or guardianship are prayed.
The petition shall be verified, but no defect in the petition or verification shall render void the issuance of letters or guardianship.
Court to set time for hearing, notice thereof.
Notice of application and hearing of the petition shall be served by the Court to:
-the person mentioned in the petition residing in the Philippines and
- the minor himself if above 14 years of age and the incompetent himself.
A statutory requirement as to the giving of notice ordinarily is deemed to be mandatory and should be strictly complied with. The effect of failure to notify an alleged insane person, where such notice is required renders the appointment void and subject to collateral attack.
In the case of Martin Nay vs Lorenzo et. Al Gr. No. L-23376 April 1, 1972 Service of the notice upon the minor if above 14 years of age or upon the incompetent, is jurisdictional without such notice the Court acquired no jurisdiction to appoint a guardian.
Opposition to Petition
Any person may file a written opposition on the petition on the ground of:
-majority of the alleged minor,
-competency of the alleged incompetent or
-unsuitability of the person whom letters are prayed for and may prayed that the petition be dismissed or that letters of guardianship be issue to himself or to any person named in the opposition.
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 the property of the latter.
Opposition to the appointment of a person as a guardian ad litem should be first addressed to and resolved by the lower Court and not for the first time on appeal
Hearing and Order for letters to issue
At the hearing the alleged incompetent must be present if able to attend (SEC.11 of AM No. 03-02-05 SC the prospective ward shall be presented to the Court), and it must be shown that the required notice has been given.
The issuance of letters is a matter particularly for the discretion of the appointing Court and will not be reviewed by the appellate Court unless for clear error.
In determining the selection of a guardian the Court may consider the following:
-financial situation,
-the physical condition and sound judgment
-prudence and trustworthiness, the morals, character and conduct
- the present and past history of the prospective appointee,
as well as the probability of his being able to exercise the powers and duties of a guardian for the full period.
Question: When a Guardian is or becomes incompetent to serve the trust if he is?
- so disqualified by mental incapacity
- convicted of a crime
- moral deliquency or physical disability as to be prevented from properly discharging the duties of his office.
A guardian, once appointed may be removed in case he becomes insane , or otherwise incapable of discharging his trust or unsuitable, or has wasted or mismanaged the estate or failed for thirty days after it is due to render an account or make return.
Finality of the appointment
The execution of the final judgment or order shall issue as a matter of right only upon the expiration of the period to appeal therefrom , if no appeal has been duly perfected.
When and how guardian for non-resident appointed
Jurisdiction of the Court over non-residents, a court of a state in which an incompetent has property has jurisdiction to appoint a guardian to his estate. Jurisdiction may be acquired by constructive service of notice by publication.
In one case it was hold that a person temporarily absent from the Philippines for the purpose of travelling abroad is not one who resides out of the Philippines.
Preference in appointment to a person already clothed with the authority of guardian in the minor’s own country or state.
Parents as Guardian
Art. 225 The father and mother shall jointly exercise legal guardianship over the property unemancipated common child without the necessity of a court appointment, in case of disagreement the father’s decision shall prevail unless there is a judicial order to the contrary.
Natural guardian cannot disposed the property of the child.
The father or mother, as the natural guardian of the minor under parental authority, does not have the power to dispose or encumber the property of the latter, such power is granted by law only to a judicial guardian of the ward’s property. (Bautista vs Adela Bustos G.R. No.L-4155 Dec.17,1952)
The disposal of minor’s property by the parents as natural guardian is null and void, having been done without power and authority. It is therefore not binding and enforceable against subsequent owners of the said property who acquired the same for value, even if the latter had notice or knowledge of such transaction prior to the acquisition of said property.
Service of judgment
Final orders or judgments under this rule shall be served upon the registrar of the municipality or city where the minor or incompetent person resides or where his property or part thereof is situated.
Under Art. 409 of the NCC, It is provided that in cases of legal separation, adoption, naturalization and other judicial orders mentioned in the preceding article, it shall be the duty of the Clerk of Court who issued the decree to ascertain whether the same has been registered and if this has not been done, to send copy of the said decree to civil registry of the city or municipality where the court is functioning.
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