RULE 93 94

APPOINTMENT OF GUARDIANS AND GUARDIANS BOND

CHARLOTTE F. GALLEGO

RULE 93
PETITION FOR APPOINTMENT OF A GUARDIAN

SCOPE AND APPLICABILITY

Rules 92-97 have been amended by AM-03-02- 05-SC (April 1, 2003).
Guardianship of incompetents who are not minors continues to be under the
jurisdiction of the regular courts and governed by Rules 92-97. Guardianship
of minors, however, is now governed by AM-03- 02-05-SC. [Regalado]

Q:
DIFFERENTIATE
INCOMPETENCY
OF
GUARDIAN
INCOMPTENCY OF PERSON UNDER GUARDIANSHIP.

FROM

A: Incompetency to act as executor or administrator cannot be equated with

the incompetency that justifies the placing of a person under guardianship.
From the fact that a person may be incompetent to act as executor or
administrator, it does not follow that he could be placed under guardianship.
But, if a person is incompetent to act as executor or administrator, then he is
not the incompetent person envisaged in the law of guardianship.
(Encarnacion Lopez vda de Baluyot v. Leonor Ines Luciano, July 13, 1973)
PROCEDURE FOR GUARDIANSHIP UNDER RULES 92-97

PARENTS AS GUARDIANS
The father and the mother shall jointly exercise legal guardianship over the
person and property of their minor without the necessity of a court
appointment. In such case, Rules of Court shall be suppletory to the
provisions of the Family Code on Guardianship.
Where the value of the property or the annual income of the child exceeds
50, 000 Php, the parent concerned shall be required to furnish a bond in such
amount as the court may determine but not less than 10% of the value or
annual income, to guarantee the performance of the obligations prescribed
for general guardians. ( Article 225, Family Code)

WHO MAY PETITION

For resident incompetents: [Rule
For non-resident incompetents:
93, Sec. 1]
[Rule 93, Sec. 6]

a) Any relative/friend/person on a) Any relative/friend;

behalf of the incompetent who has no
b)
Anyone
interested
in
the
parent or lawful guardian;
incompetents estate.
b) Health Secretary, in favor of:
If the interested person is a creditor
(1) an insane person who should be and mortgagee of the wards estate,
hospitalized; (2) an isolated leper.
he cannot be appointed guardian of
the wards person and property. No
man
can
serve
two
masters.
[Garchitorena v. Sotelo]

Contents of Petition [Rule 93, Sec. 2]

MINOR

INCOMPETENT

a) the jurisdictional facts;

b) the name, age and residence of
the prospective ward;
c) the
ground
rendering
the
appointment
necessary
or
convenient;
d) the death of the parents of the
minor
or
the
termination,
deprivation or suspension of their
parental authority;
e) the remarriage of the minors
surviving parent;

a) the jurisdictional facts;

b) the minority or incompetency
rendering
the
appointment
necessary or convenient;
c) the probable value and character
of his estate;
d) the names, ages, and residences
of the relatives of the minor or
incompetent, and of the
e) persons having him in their care;
f) the name of the person for whom
letters of guardianship. (Sec. 2

f)

the names, ages, and residences

of relative within the 4th civil
degree of minor, and of persons
having him in their care and
custody;
g) the probable value, character and
location of the property of the
minor; and
h) the name, age
and
residence of the person for whom
letters of guardianship are prayed.

Rule 93)

The petition involving minors is required to be VERIFIED and

accompanied by certification against FORUM SHOPPING while that involving
incompetent must be verified only. HOWEVER, no defect in the petition or
verification shall render void the issuance of letters of guardianship.
There is NO requirement for PUBLICATION, only notice EXCEPT in case
of nonresident minor/incompetent.
HOWEVER, service of NOTICE upon minor if 14 years of age or over,
or upon incompetent is mandatory and jurisdictional.
If the person is insane, service of notice upon the Director of Hospital
where hospitalized is sufficient.

HEARING
When a petition is filed, the court shall fix a time and place for hearing. The
court shall cause notice to be given to the persons mentioned in the petition
residing in the province, including the incompetent himself. [Rule 93, Sec. 3]
Notice to the wards relatives is a jurisdictional requirement. [Yangco v. CFI]

OPPOSITION [Rule 93, Sec. 4]

Any interested person may file a written opposition and pray that:
1) Petition be dismissed;
2) Letters of guardianship issue to himself or to any suitable person named in
the opposition.
Grounds
1.
2.
3.

majority of alleged minor

competency of alleged incompetent
unsuitability of the persons for whom letters are prayed

Procedure:
a.
filing of petition
b.
court shall set the case for hearing
c.
cause notices to be served to the persons mentioned in the petition,
including minor,
if 14 years and above
d.
court shall receive evidence
e.
declaration of the propriety of the petition
f.
issue letters of guardianship
GUARDIANS APPOINTMENT
The alleged incompetent must be present at the hearing, if able to attend.
It must also be shown that the required notice was given. The court shall
then hear parties evidences. If the person in question is an incompetent, the
court shall appoint a suitable guardian of his person/estate/both. [Rule 93,
Sec. 5]
The guardians appointment is good until set aside; and, despite and
appeal therefrom, theguardian can do what is necessary (under courts
direction) for the protection of the ward/estate. [Zafra-Sarte v. CA (1970)]
CONSIDERATIONS IN THE CHOICE OF THE GUARDIAN [Francisco v. CA
(1984)]
The court may consider the financial situation, the physical condition and
sound judgment, prudence and trustworthiness, the morals, character and
conduct, and the present and past history of a prospective appointee, as well
as the probability of his being able to exercise the powers and duties of a
guardian for the full period during which guardianship will be necessary.
The courts should not appoint as a guardian any person who is not
personally subject to
their jurisdiction (e.g. non-residents). [Guerrero v. Teran]
The best interests of a ward can override procedural rules and even the
rights of parents
to the custody of their children.

SERVICE OF JUDGMENT
The final order or judgment shall be served upon the civil registrar of the
municipality/city where the incompetent resides or where his property is
situated. [Rule 93, Sec. 8]
CASES
ALAMAYRI v. PABALE
April 30, 2008
Facts:

1. Almayri petitions the court for the setting aside of the CA decision.
2. Cesnando Fernando, representing S.M. Fernando Realty Corp filed an
action for Specific Performance with Damages (Civil Case) against Nelly Nave
who owns a parcel of land which the former alleged was the subject of a
'Kasunduan ng Pagbibilihan'. However, Nave allegedly reneged on their
agreement when she refused to accept the partial payment of Fernando. The
said lot was instead sold to the Pabale siblings.
3. Subsequently, the civil proceedings were suspended by virtue of a
guardianship proceedings. In June 1988, Nave was declared therein to be
incompetent.
4. The lower court declared the nullity of the two sale agreements on the
ground that Nave was found incompetent since 1980. The Pabale siblings
intervened. The Court of Appeals granted the appeals of both Fernando and
the Pabale siblings and upheld the validity of the Deed of Sale executed by
Nelly Nave dated February 20, 1984. Hence this petition.
4. Petitioner alleged that since Nave was judicially determined to be an
incompetent, all contracts that she subsequently entered into should be
declared null and void.
Issue: Is conclusiveness of judgment applicable in special proceedings?
Held: No. There was no identity of parties and issues between the special
proceeding on the guardianship of Nave and the civil case. The decision on
the former on her incompetency should not therefore bar by conclusiveness
of judgement the finding in the latter case (civil case) that Nave was
competent and had capacity when she entered into the contract of sale over
the subject lot in favor of the Pabale siblings.
VANCIL VS BELMES
June 19, 2001
FACTS: The RTC appointed Bonifacia Vancil, an American citizen, as legal and
judicial guardian over the persons and estate of Valerie and Vincent, the
children of her deceased son Reeder. Helen Belmes, the natural mother of
the minor children, instituted a motion for removal of Guardianship and
Appointment of Vancil, asserting that she is the natural mother in custody of
and exercising parental authority over the subject minors. Trial court rejected
Belmes'petition. The CA reversed the RTC order. Since Valerie had reached
the age of majority at the time the case reached the SC, the Court resolves
to determine who between the mother and grandmother of minor Vincent
should be his guardian.
Issue: Who between the mother and grandmother of the minor should be his
guardian.
Held: Belmes, being the natural mother of Vincent, has the preferential right
to be his guardian. Art. 211 of the FC states: "The father and the mother
shall jointly exercise parental authority over the persons of their common

children. In case of disagreement, the fathers decision shall prevail, unless

there is a judicial order to the contrary. xxx."
Vancil, as the surviving grandparent, can exercise substitute parental
authority only in case of death, absence or unsuitability of Belmes.

RULE 94
GUARDIANS BOND
Before an appointed guardian enters upon the execution of his trust, he shall
give a BOND (Sec. 1 Rule 94).
Conditions on the bond: [Rule 94, Sec. 1]
1) To make and return, within 3 months, the estates inventory;
2) To faithfully execute the duties of his trust, to manage and dispose of the
estate according to wards best interests, and to provide for the wards
proper care/custody/education;
3) To account for the estate and all proceeds/interest derived therefrom;
4) At the expiration of his trust, to settle his accounts with the court and
deliver the remaining estate to the person lawfully entitled thereto;
5) To perform all court orders.
In case of breach of the bonds conditions, the bond may be prosecuted in
the same proceeding or in a separate action, for the use and benefit of the
ward or of any person legally interested in the estate. [Rule 94, Sec. 3]

PURPOSE OF THE BOND

It is for 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 (Herrera,
Vol. III-A, p. 282, 2005 ed.)
Note: The bond of the guardian is a continuing one against the obligors and
their estates until all of its conditions are fulfilled. The mere fact that
defendant was removed as guardian did not relieve her or her bondsmen
from liability during the time she was duly acting as such guardian. (Guerrero
v. Teran, G.R. No. L-4898, Mar. 19, 1909).

NEW BOND
Whenever necessary, the court may require a new bond to be given by the
guardian. After notice to interested persons, the sureties on the old bond
may then be discharged from further liability when no injury will result to
interested parties. [Rule 94, Sec. 2]

COMPILED BAR QUESTIONS AND ANSWERS

(1994-2014)
Q: Who may petition for appointment of guardian for resident?
A: 1. Any relative;
2. Other person on behalf of the minor;
3. Minor himself is 14 years of age; or
4. Secretary of Social Welfare and Development AND by the Secretary of
Health in case of insane minor who needs to be hospitalized. (Section 2, AM03-02-05-SC)
Q: Is court appointment necessary to enable the father and the
mother to exercise joint legal guardianship over the person and
property of minor?
A: No. The father and the mother shall jointly exercise legal guardianship
over the person and property of their minor without the necessity of a court
appointment. In such case, this Rule shall be suppletory to the provisions of
the Family Code on Guardianship (Section 1, AM -03-02-05-SC)
Q: What would the court do if an issue arises as to who has the
better right or title to the properties conveyed in the guardianship
proceeding?
A:
GR: The issue should be threshed out in a separate ordinary action as it is
beyond the jurisdiction of the guardianship court.
XPN: When the wards right or title to the property is clear and undisputable,
the guardianship court may issue an order directing its delivery or return.
Q: What are the grounds for the appointment of a guardian over the
person or property, or both, of a minor?
A:
1. Death, continued absence, or incapacity of his parents;
2. Suspension, deprivation or termination of parental authority;
3. Remarriage of surviving parent, if the latter is found unsuitable to exercise
parental authority; or
4. When the best interests of the minor so require (Sec. 4, A.M. No. 03-02-05SC).
Q: What are the factors to be considered for the appointment of
guardian of minors?
A:
1. Moral character;
2. Physical, mental, and psychological condition;
3. Financial status;
4. Relationship of trust with the 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; and
7. Ability to manage the property of the minor (Sec. 5, A.M. No. 03-02-05SC).
Note: The court shall order a social worker to conduct a case study of the
minor and all the prospective guardians and submit his report and
recommendation to the court for its guidance before the scheduled hearing.
(Sec.9, A.M. No. 03-02-05-SC).

Q: Who may be appointed as guardian of a minor?

A: 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. Surviving grandparent and, in case several grandparents survive, the
court shall select any of them taking into account all relevant considerations;
2. Oldest brother or sister of the minor over 21 years of age, unless unfit or
disqualified;
3. Actual custodian of the minor over 21 years of age, unless unfit or
disqualified;
4. Any other person, who in the sound discretion of the court would serve the
best interests of the minor (Sec. 6, A.M. No. 03-02-05-SC).
Q: What are the grounds for opposition to petition of guardianship
of minors?
A:
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).
Q: How may a petition for guardianship of minors or incompetents
be opposed?
A: 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 9).
Q: What are the conditions of the bond of the guardian?
A:
1. To make and return to the court, within 3 months, a true and complete
inventory of all the estate of his ward which shall come to his possession or
knowledge or
to the possession or knowledge of any other person for him;
2. To faithfully execute the duties of his trust, manage and dispose of the
estate according to the rules for the best interests of the ward, and to
provide for the proper care, custody, and education of the ward;
3. To render a true and just account of all the estate of the ward in his hands,
and of all proceeds or interest derived there from, and of the management
and disposition of the same, at the time designated by the rules and such
other times as the court directs; and at the expiration of his trust, settle his
accounts with the court and deliver and pay over all the estate, effects, and
moneys remaining in his hands, or due from him on such settlement, to the
person lawfully entitled thereto; and
4. To perform all orders required by the court (Sec. 1, Rule 94; Sec.14, A.M.
No. 03-02-05-SC).
Q: What is the purpose of the bond?
A: It is for 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
(Herrera, Vol. III-A, p. 282, 2005 ed.)
Note: The bond of the guardian is a continuing one against the obligors and
their estates until all of its conditions are fulfilled. The mere fact that
defendant was removed as guardian did not relieve her or her bondsmen
from liability during the time she was duly acting as such guardian.
(Guerrero v. Teran, G.R. No. L-4898, Mar. 19, 1909)

Q: Does the requirement of posting a bond extend to parents who

are the legal guardians of their minor children? Explain.
A:
GR: No, if the market value or annual income of the child is P 50,000 or
below.
XPN: If the market value of the property or the annual income of the child
exceeds P50,000, 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 (Sec. 16, A.M. No. 03-02-05-SC).
Q: What is the rule when there is an issue as to who has a better
right or title to properties conveyed in the course of the
guardianship proceedings?
A: The controversy should be threshed out in a separate ordinary action as
the dispute is beyond the jurisdiction of the guardianship court. However,
where the right or title of the ward to the property is clear and indisputable,
the guardianship court may issue an order directing its delivery or return.