Rule 92- GUARDIANSHIP VENUE Guardianship- a trust relation of the most sacred character, in which 1 person called a guardian

n acts for another called ward whom the law regards as incapable of managing his own affairs. Designed to further the wards well-being and preserve the wards property. Minors involved, State acts as parens patriae. Parens Patriae is inherent in the supreme power of the state It is the interest of humanity and for the prevention of injury to those who cannot protect themselves. Guardian- 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. General Guardian- one whose responsibility is over the person of the ward or over his property. Limited Guardian- over property only Legal Guardian- those 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. Guardian Ad Litem- competent person appointed by the court to prosecute or defend a minor, insane or person declared to be incompetent, in an action in court. Guardianship proceeding involving incompetent person not minors- RTC where he resides pursuant to BP 129 Guardianship involving minors- Family court where minor resides Venue is the place of residence of minor or incompetent person, if non-resident place where the property of such minor or incompetent may be situated. Who has better right or title to properties conveyed in guardianship proceedingscontroversy should be threshed out in a separate ordinary action If title or right clear and undisputableguardianship court may issue an order directing its delivery or return Guardianship court has no jurisdiction as to who has a better right or title in guardianship proceeding

Rule 93- APPOINTMENT OF GUARDIANS Incompetency of guardian to act as an executor or administrator is not the incompetent person envisaged in the law of guardianship. Persons who may appoint MINOR- 1. Any relative, 2. Other person on behalf of the minor, 3. Minor himself if 14yrs or over, 4. Sec. of Social Welfare and by Sec. of Health in case insane minor needs to be hospitalized; INCOMPETENT- 1. Relative, 2. Friend, 3. other person on behalf of the resident incompetent who has no parents or lawful guardian or Director of health in favour of an insane who should be hospitalized or in favour of an isolated leper, 4. Any one interested in the estate of a non-resident incompetent. Contents of petition for guardianship (read p.113) FACTORS CONSIDERED IN APPOINTING A GUARDIAN: 1. financial situation, 2. physical condition, 3. sound judgement, 4. prudence and trustworthiness, 5. moral character and conduct, and 6. present and past history of a prospective appointee, as well as the6. probability of his being able to exercise the powers and duties of guardian for the full period during which guardianship is necessary Notice to a minor above 14 yrs old jurisdictional- non compliance under Sec 3 Rule 93 of Revised Rules of Court renders guardianship proceeding s null and void. Conclusiveness of judgment has no application to the instant Objectives of RTC hearing a petition for appointment of a guardian 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.(ALAMAYRI vs. PABALE) Our Civil Code considers parents, the father, or in the absence, the mother, as natural guardian of her minor children. Sec 7 of Rule 93 of Revised Rules of Court confirms the designation of the parents as ipso facto guardian of their minor children without need of a court appointment and only for a

good reason may another person be named ( VANCIL vs. BELMES) Rule 95- SELLING AND ENCUMBERING PROPERTY OF WARD GROUNDS WHEN A GUARDIAN MAY SELL OR ENCUMBER THE ESTATE: 1. when income of an estate under guardianship is insufficient to maintain the ward and his family 2. Maintain and educate the ward when a minor 3. Appears that it is for the benefit of the ward and the proceeds thereof put out at interest, or invested in some productive security, or in the improvement or security of other real estate of the ward. Who is the Next of Kin of the ward referred to? - Relatives whose relationships are such as to entitle them to shares in the real estate as distributes. If no notice to the next kin of the ward- case will be dismissed because this Rule is jurisdictional. Rule 96- GENERAL POWERS AND DUTIES OF GUARDIANS GENERAL POWERS AND DUTIES OF A GUARDIAN: 1. Care and custody of the person of the ward and the management of his estate, or the management of the estate only 2. Pay the debts of ward 3. Settle accounts, collect debts and appear in actions for ward 4. Manage the estate of the ward frugally and apply the proceeds to maintenance of the ward 5. Render verified inventory within 3 months after his appointment and annually thereafter upon application of interested persons 6. Present his account to the court for settlement and allowance 1 year from his appointment and every year thereafter or as often as may be required. Guardians like trustees are prohibited under Art. 736 of the Civil Code from making a donation of the properties entrusted to him. Rule 97- TERMINATION OF GUARDIANSHIP TERMINATION MINOR- 1. Ward has come of age, 2. Death of ward, 3. Death of guardian; INCOMPETENT-1. Competency has been

judicially determined, 2. Guardianship no longer necessary, 3. Death of either. Best interest of the Child- welfare of the minors should always be the paramount consideration. Aside from the material resources and the moral and social situations of each parent, other capability to attend to the physical, educational, social and moral welfare of the children. Tender-age presumption- GR: mother is to be preferred in awarding custody of children under the age of 7. EXCEPTION: compelling evidence of the mothers unfitness- mother has been declared unsuitable to have custody of her children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child or affliction with a communicable disease. Parents are required to post a bond only when the market value of the property or the annual income of a child exceeds P50k, parents 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 obligation prescribed for general guardians. Grounds for removal of resignation of Guardian under sec 24: Guardian becomes insane or incapable of discharging his trust, unsuitable, wasted or mismanaged the property of the ward, failed to render an account or make a return for 30 days after it is due, court may allow the guardian to resign for justifiable causes.

AM No. 03-02-05 SC Guardianship of MINORS Took effect on May 1, 2003 Only covers the person and property or both of the minor ward Court is solely concerned with the wards custody and proper administration of his properties Generally, guardianship court cannot actually order the delivery of the property of the ward found to be embezzled or concealed EXCEPT only in extreme cases where property clearly belongs to the ward or where his title thereto has been judicially

decided, may the court direct its delivery to the guardian. Father and mother shall jointly exercise legal guardianship over minor without court appointment Any relative or other person on behalf of a minor, or minor himself if 14 yrs or over may file a petition for appointment of guardian INSANE MINOR- petition also be filed by the Sec. of DSWD and Sec. of Health if insane minor needs to be hospitalized Venue must be filed in the family court of the province or city where the minor actually resides. IF RESIDES IN FOREIGNfamily court where his property or any part thereof is situated. GROUNDS FOR THE APPOINTMENT- 1. Death, continued absence, incapacity of parents; 2. Suspension, deprivation or termination of parental authority; 3. Marriage of surviving parent, if latter is found unsuitable to exercise parental authority; 4. Best interest of minor COURT SHOULD CONSIDER IN APPOINTING1. Moral character; 2. Physical, mental and psychological condition; 3. Financial status; 4. Relationship of trust with minor, 5. Availability to exercise the powers and duties of a guardian for the full period of the guardianship; 6. Lack of conflict of interest with the minor; 7. Ability to manage the property of the minor. PREFERENCE in appointing in default of parents: 1. Surviving grandparents, court shall select any of them taking into account all relevant considerations; 2. Oldest brother or sister over 21 unless unfit or disqualified; 3. Actual custodian of the minor over 21 unless unfit or disqualified; 4. Any other person, who in the sound discretion of the court , would serve the best interests of the minor. Any interested person may contest the petition by filing a written opposition based on such ground as the majority of the minor or unsuitability of the person for whom letters are prayed, and pray that the petition be denied, or that letters of guardianship issue to himself, or to any suitable person named in the opposition.

Hearing on guardianship may be closed to the public at the discretion of the court. If minor resides outside the Philippines- any relative or friend of such minor, or any one interested in his property, in expectancy or otherwise, may petition the Family Court for the appointment of a guardian over the property. Notice shall be given to the minor by publication or any other means as the court may deem proper. Parents are required to post a bond when the market value of the property or the annual income of the child exceeds P50,000.00 but in no case less than10% of the value of such to guarantee the performance of the obligation prescribed for general guardians. Guardian can sell the property of the ward when the income of the property under guardianship is insufficient to maintain and educate the ward or the proceeds invested in safe and productive security or the improvement or security of other real property Court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other money of his ward in his hands for the best interests of the ward. GROUNDS FOR REMOVAL OR RESIGNATION of Guardian 1. guardian becomes insane or incapable of discharging his trust; 2. Found to be unsuitable; 3. Wasted or mismanaged the property of the ward; 4. Failed to render an account or make a return for 30 days after it is due; 5. Court may allow the guardian to RESIGN FOR JUSTIFIABLE CAUSES. Upon removal or resignation of guardian, Court shall appoint a new one. No motion for removal or resignation shall be granted unless the guardian has submitted the proper accounting of the property of the ward and the court has approved the same. TERMINATION OF GUARDIANSHIP: 1. Ward has come of age; 2. Ward has died

RULE 98- TRUSTEES CONCEPT- a trust is a confidence reposed in 1 person called the trustee for the benefit of another called the CESTUI QUE TRUST

with respect to property held by the former of the benefit of the latter. EXPRESS TRUST- on created by the direct and positive acts of the parties by some writing or deed or will or by the words evidencing an intention to create a trust IMPLIED TRUST- one without being express is deducible from the nature of the transaction as a matter of intent or which are super induced on the transaction by operation of laws as a matter of equity, independent of particular intention of the parties. Rule 98 does not apply to Implied trust Trustee necessary: 1. To carry into effect a will where the testator omitted appointing a trustee in the Philippines; 2. To carry into effect other written instruments where the trustee declines, resigns, dies, or is removed before the accomplishment of trust. Trustee cannot buy property held in trust by him because a trustee shall not be allowed to take advantage for himself of trust property under the pretense of serving the beneficiary. Trustee cannot acquire property by prescription because the trustees possession is not adverse and therefore cannot ripen into a title by prescription PRESCRIPTION MAY ARISE WHERE THERES IS ADVERSE POSSESION OF THE PROPERTY To constitute adverse possession this must concur: 1. Trustee has performed unequivocal acts of repudiation amounting to the ouster of the CESTUI QUE trust; 2. Such positive acts of repudiation have been known to the CES QUE TRUST; and 3. Evidence should be clear and conclusive

ADOPTION Adoption- a juridical act, a proceeding in rem, which creates between 2 persons a relationship similar to that which results from legitimate paternity and filiation. Only an adoption made through court is valid in this jurisdiction To establish the relation, the statutory requirements must be strictly carried out otherwise the adoption is an absolute nullity Fact of adoption is never presumed, must be affirmatively proved by the person

claiming its existence, such as by the decree of adoption issued by the court Adoption liberally construed to carry out the beneficial purposes of the adoption institution and to protect the adopted child in the rights and privileges coming to it as a result of the adoption Main purpose of adoption is the promotion of the welfare of children Petition for adoption shall be filed with the FAMILY COURT OF THE PROVINCE OR CITY WHERE THE PROSPECTIVE ADOPTIVE PARENTS RESIDE Jurisdiction and venue over inter-country adoption- FAMILY COURT WHERE CHILD RESIDES OR MAY BE FOUND. IT MAY BE FILED DIRECTLY WITH THE INTER-COUNTRY ADOPTION BOARD JURISDICTION: domestic- family court where adopter reside/ inter country-family court where child reside or found and also directly with inter-country adoption board APPLICATION: domestic- only by filing a petition with the family court in the Philippines/ inter country- may be through agency located in the foreign country TRIAL CUSTODY: domestic- made In the Philippines for 6 months/ inter countrymandatory in the country of the adopter PUBLICATION: domestic- necessary/ inter country- no requirement for publication PETITION: domestic- allowed to be accompanied with prayers for change of name, rectification of simulated birth or declaration that the child is a foundling, abandoned dependent or neglected child/ inter country- none required INTER-COUNTRY ADOPTION- it is a sociolegal process of adopting a Filipino child by a foreigner or a Filipino citizen permanently residing abroad where the petition is filed, the supervised trial custody is undertaken, and the decree of adoption is issued outside the Philippines. INTER-COUNTRY ADOPTION BOARD- a body created to act as the central authority in matters relating to inter-country adoption. Acts as policy- making body for purposes of carrying out the provisions of the Intercountry Adoption Act, in consultation and coordination with DSWD, different childcare and placement agencies, adoptive

agencies, as well as NGOs engaged in childcare and placement activities. SC GUIDELINES IN DOMESTIC ADOPTION A lawyer prepares the petition for the person or persons wanting to adopt. Petition includes documents like birth certificate, marriage certificate, proof of financial capacity, clearance and others as proof of good moral character, good health, etc. Upon Payment of docket fee, petition is raffled to a family court. If petition is sufficient in form and substance, court issues an order setting the case for initial hearing and ordering the court social worker to conduct a case study and home visit Court order is published in a newspaper of general circulation once a week for 3 weeks. Newspaper is chosen by raffle Before initial hearing, social worker conducts a case study and home visit then submits his investigation report and recommendation to the court On the date of the initial hearing, petitioner and prospective adoptee must be present. Lawyer presents what are known as the jurisdictional facts If there is no opposition to the petition for adoption by any party, lawyer asks the court permission for an ex parte presentation of evidence, done before only the court stenographer and court appointed commissioner. Court can however require presentation in open court If court decision favourable and no appeal by any party, court issues a Certificate of finality. Lawyer then coordinates with the local civil registrar of city where the court is located and adoptees birthplace and the NSO for the issuance of a new birth certificate bearing the petitioners surname FINANCIAL QUALIFICATION Since the primary consideration in adoption is the best interest of the child, it follows that the financial capacity of prospective parents should also be carefully evaluated and considered. At the time of the filing of the petition, petitioner was 57 yrs sold, employed on a part time basis as waitress

earning $5.15 an hour and tips of around $1,000 a month. Her main intention in adopting their children is to bring the latter to Guam but the same is still amortized. She likewise knows that the limited income might be a hindrance to the adoption proceeding (Landingin vs. RP) USE OF MIDDLE NAME UPON DECREE OF ADOPTION LIBERAL CONSTRUCTION-The interests and welfare of the adopted child are of primary and paramount consideration, hence every reasonable intendment should be sustained to promote and fulfil these noble and compassionate objectives of the law(Garcia vs. Catindig) USE OF SURNAME IS FIXED BY LAW- name of an individual has 2 parts: 1. Given or proper name and 2. Surname or family name. Proper name is that which is given to the individual at birth or at baptism to distinguish him from other individuals. Surname is that which identifies the family to which he belongs and is continued from parent to child. Surname is fixed by law(Garcia vs. Catindig) LAW IS SILENT AS TO THE USE OF MIDDLE NAME: There is no law regulating the use of middle name. The principle that in the Chapter on the Use of Surnames, they should say that initial or surname of the mother should immediately precede the surname of the father so that the second name if any will be before the surname of the mother .This is the Filipino way. (Garcia vs. Catindig) UNDERLAYING INTENT OF ADOPTION IS IN FAVOR OF THE ADOPTED CHILD: The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also an act which endows the child with legitimate status. RESCISSION OF ADOPTION Prior to the institution of the case RA. 8552, also known as the Domestic Adoption Act went into effect, the new statue deleted from the law the right of adopters to rescind a decree of adoption. Action for rescission of the adoption decree, having been initiated by petitioner after RA. 8552

had come into force, no longer could be pursued. (lahom vs. Sibulo)