How to be a Legal Guardian of a Minor?

In the Philippines, the law provides that the father and the mother shall jointly exercise legal guardianship over the person and property of their unemancipated common child without the necessity of a court appointment.

In the absence of the father or mother, who can be the guardian of a minor?

A.M. NO. 03-02-05-SC, which took effect on 01 May 2003, provides for the Rules on Guardianship of Minors (“Rules”).  The Rules apply to petitions for guardianship over the person or property, or both, of a minor. 

Who may petition for appointment as Legal Guardian of a Minor?

Any relative or other person on behalf of a minor, or the minor himself if fourteen years of age or over, may petition for the appointment of a general guardian over the person or property, or both, of such minor. The petition may also be filed by the Secretary of Social Welfare and Development and by the Secretary of Health in the case of an insane minor who needs to be hospitalized. 

Where do you file the petition to be appointed as Legal Guardian?

A petition for guardianship may be filed in the Family Court of the province or city where the minor actually resides. If he resides in a foreign country, the petition shall be filed with the Family Court of the province or city where his property or any part thereof is situated.

What are the grounds for the Petition?

The grounds for the appointment of a guardian over the person or property, or both, of a minor are the following:

1. death, continued absence, or incapacity of his parents;
2. suspension, deprivation or termination of parental authority; 
3. remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority; or
4. when the best interests of the minor so require.

Who may be appointed as Legal Guardians?

In appointing a guardian, the court shall consider the guardian’s:

(a) moral character; 

(b) physical, mental and psychological condition;

(c) financial status;

(d) relationship of trust with the minor;

(e) availability to exercise the powers and duties of a guardian for the full period of the guardianship;

(f) lack of conflict of interest with the minor; and

(g) ability to manage the property of the minor.

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.

What must the Petition to be appointed as Legal Guardian contain?

A petition for the appointment of a general guardian must allege the following:

1. The jurisdictional facts;
2. The name, age and residence of the prospective ward; 
3. The ground rendering the appointment necessary or convenient; 
4. The death of the parents of the minor or the termination, deprivation or suspension of their parental authority;
5. The remarriage of the minor’s surviving parent;
6. The names, ages, and residences of relatives within the 4th civil degree of the minor, and of persons having him in their care and custody;
7. The probable value, character and location of the property of the minor; and 
8. The name, age and residence of the person for whom letters of guardianship are prayed.

The petition shall be verified and accompanied by a certification against forum shopping.

When and how is a guardian of the property for non-resident minor appointed?

When the minor resides outside the Philippines but has property in the Philippines, any relative or friend of such minor, or anyone interested in his property, in expectancy or otherwise, may petition the Family Court for the appointment of a guardian over the property.

Notice of hearing of the petition shall be given to the minor by publication or any other means as the court may deem proper. The court may dispense with the presence of the non-resident minor.

If after hearing the court is satisfied that such non-resident is a minor and a guardian is necessary or convenient, it may appoint a guardian over his property. 

What are the duties of Legal Guardian?

A guardian shall have the care and custody of the person of his ward and the management of his property, or only the management of his property. The guardian of the property of a nonresident minor shall have the management of all his property within the Philippines.

A guardian shall perform the following duties:

(a) To pay the just debts of the ward out of the personal property and the income of the real property of the ward, If the same is sufficient; otherwise, out of the real property of the ward upon obtaining an order for its sale or encumbrance;

(b) To settle all accounts of his ward, and demand, sue for, receive all debts due him, or may, with the approval of the court, compound for the same and give discharges to the debtor on receiving a fair and just dividend of the property and effects; and to appear for and represent the ward in all actions and special proceedings, unless another person is appointed for that purpose;

(c) To manage the property of the ward frugally and without waste, and apply the income and profits thereon, insofar as may be necessary, to the comfortable and suitable maintenance of the ward; and if such income and profits be insufficient for that purpose, to sell or encumber the real or personal property, upon being authorized by the court to do so;

(d) To consent to a partition of real or personal property owned by the ward jointly or in common with others upon authority granted by the court after hearing, notice to relatives of the ward, and a careful investigation as to the necessity and propriety of the proposed action;

(e) To submit to the court a verified inventory of the property of his ward within three months after his appointment, and annually thereafter, the rendition of which may be required upon the application of an interested person; 

(f) To report to the court any property of the ward not included in the inventory which is discovered, or succeeded to, or acquired by the ward within three months after such discovery, succession, or acquisition; and (g) To render to the court for its approval an accounting of the property one year from his appointment, and every year thereafter or as often as may be required.

What is the ground for termination of Guardianship?

The court motu proprio or upon verified motion of any person allowed to file a petition for guardianship may terminate the guardianship on the ground that the ward has come of age or has died. The guardian shall notify the court of such fact within ten days of its occurrence.

About Nicolas and De Vega Law Offices

If you need assistance in guardianship of a minor, adoption, or other special proceedings concerning family law, we can help you. Nicolas and de Vega Law Offices is a full-service law firm in the Philippines.  You may visit us at the 16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, 1605 Pasig City, Metro Manila, Philippines.  You may also call us at +632 84706126, +632 84706130, +632 84016392 or e-mail us at info@ndvlaw.com. Visit our website www.ndvlaw.com.