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local probate rule 12

PROBATE RULE 12: GUARDIANSHIPS

A. GUARDIAN OF MINOR'S ESTATE
B. PETITION FOR APPOINTMENT OF GUARDIAN OF MINOR’S PERSON
C. COORDINATION OF CUSTODY AND GUARDIANSHIP MATTERS
D. COORDINATION OF RESTRAINING ORDER AND GUARDIANSHIP MATTERS
E. OBJECTION TO GUARDIANSHIP
F. DUTIES OF GUARDIAN
G. ATTENDANCE AT THE HEARING
H. CONTESTED GUARDIANSHIP
I. CHANGE OF RESIDENCE OF GUARDIAN OR WARD
J. USE OF WARD’S ASSETS FOR SUPPORT
K. ACCOUNTINGS
L. TERMINATION OF GUARDIANSHIP OF THE PERSON
M. TEMPORARY GUARDIANSHIPS
N. REMOVAL OF GUARDIAN
O. VISITATION
P. FIXING RESIDENCE OF A WARD OUTSIDE CALIFORNIA

A. GUARDIAN OF MINOR'S ESTATE

(1) INVESTIGATION

The proposed guardian must complete and sign under penalty of perjury a "Referral for Court Investigator & Questionnaire - Guardianship" (Attachment PB-4005 ) at the time the petition for establishment of guardianship is filed. This form is confidential. Together with the "Referral for Court Investigator & Questionnaire - Guardianship" the proposed guardian must present a signed Authorization for Release of Information form (Attachment PB-4014 ) to enable court investigators to access the information required in Probate Code § 1513.

(Eff. 1/01/09)

(2) BOND REQUIRED

Bond will ordinarily be required for the first year for the guardian of a minor's estate even if a nomination of guardian has been signed waiving bond. The provisions of sections 4.C through 4.F of these local rules apply to guardianships. The amount of the bond must include one year's income from all sources of income of the ward, any sums required under Probate Code § 2320(c), and the fair market value of real property for guardians authorized to sell or encumber such property pursuant to Probate Code § 2590.

(Eff. 7/01/10)

(3) INDEPENDENT POWERS

A request for independent powers under Probate Code §§ 2590 and 2591 will not be granted without specifying each power requested and the specific reason for the need for each power requested.

(Eff. 1/01/08)

(4) FILING OF INVENTORY AND APPRAISAL

The Inventory and Appraisal and the Notice of How to File an Objection must be filed and served within 90 days of appointment pursuant to Probate Code § 2610. At the time of appointment, the Court will set a compliance review approximately 94 calendar days after the appointment to confirm that the Inventory and Appraisal and Notice of How to File an Objective have been filed and served. If the Inventory and Appraisal is not on file at that time, the Court may issue an order to produce the Inventory and Appraisal, which will be served by certified mail on the guardian and on the attorney for the guardian.

(Eff. 7/01/12)

B. PETITION FOR APPOINTMENT OF GUARDIAN OF MINOR'S PERSON

(1) INVESTIGATION

The proposed guardian must complete and sign under penalty of perjury a "Referral for Court Investigator & Questionnaire -- Guardianship" (Attachment PB-4005 ) at the time the petition for establishment of guardianship is filed. This form is confidential. Together with the “Referral for Court Investigator & Questionnaire -- Guardianship”, the proposed guardian(s) must present a signed Authorization for Release of Information form (Attachment PB-4014 ) to enable court investigators to access the information required in Probate Code § 1513.

(Eff. 1/01/08)

(2) NOTICE

The following are the local addresses for notice according to Probate Code §§ 1516 and 1542:

Program Manager
Emergency Response Services
Santa Clara County Social Services Agency
333 W. Julian Street
San Jose, California 95110

Social Services Agency
Department of Family and Children's Services
333 W. Julian Street
San Jose, California 95110
(Non-relative guardians only)

The California Department of Social Services
744 P Street
Sacramento, California 95814
(Non-relative guardians only)

(Eff. 7/01/02)

(3) MINOR'S FATHER UNKNOWN

If it is alleged that the minor's father is unknown, a photocopy of the minor's birth certificate should be attached to the affidavit or declaration in support of an order dispensing with notice. Use of the terms "withheld" on the birth certificate with reference to the father does not mean "unknown," and should be further explained in the allegation.

 

(4) REQUEST TO DISPENSE WITH NOTICE 

If a party seeks to dispense with notice because a person cannot be located, the party may use local form Request to Dispense with Notice (form PB-4068) and comply with rule 7.52 of the California Rules of Court.

(Eff. 7/01/18)

(5) EX PARTE/EMERGENCY APPLICATIONS AND ORDERS


(a) ACTIONS NOT GOVERNED BY THIS RULE


This rule does not apply to ex parte requests for temporary guardianships, general guardianship, or termination of guardianships, as the processes for those actions are otherwise statutorily prescribed.


(b) NOTICE AND SUBMISSION OF EX PARTE APPLICATIONS


All applications for ex parte or emergency orders must be submitted to the Probate Court Document Examiner.  An ex parte petition or application must contain sufficient facts to justify the orders requested, including an order shortening time, if appropriate. 
Notice of the application and proposed order must be served on all parties 24 hours before presenting the ex parte petition to the court unless the court orders that notice may be dispensed.  The petition and a proposed order must be presented to the Probate Examiner’s office with a declaration (attached form PB-4075) regarding notice or why notice has not been given. 
Any application seeking temporary orders without prior notice to all parties, including orders shortening time must include a sworn statement of facts showing good cause not to give notice.  The moving party may not rely on the declaration filed in support of the application for temporary orders to establish good cause not to give notice.  The statement of good cause not to give notice may be provided with a declaration (attached form PB-4075).


(c) PROPOSED ORDERS


Along with the application and declaration in support of ex parte application, attorneys or self-represented parties must also submit a proposed order reflecting the orders requested in the application. 


(d) OPPOSITION TO EX PARTE APPLICATION


Attorneys or self-represented parties must serve on moving party and file with the Probate Document Examiner any written response to the ex parte application within 24 hours of the ex parte application’s submission to the Court, unless the Court requests an expedited response.

(Eff. 07/01/19)

C. COORDINATION OF CUSTODY AND GUARDIANSHIP MATTERS

 If there is pending both an action regarding the custody of a minor child and a  an action for Guardianship of the Person or Person and Estate of the minor child  under the  Family Code, the cases should be coordinated for hearing purposes and assigned for hearing to the  Guardianship APJ.  At the earliest opportunity, the cases shall be linked in the case management system, so that the judicial officer hearing the matter is made aware of the existence of the other case or cases.  Pursuant to CRC 5.154, the proposed guardian, temporary guardian, or guardian, may be joined into the Family Court action as a party.


(Eff. 7/01/12)

D. COORDINATION OF RESTRAINING ORDER AND GUARDIANSHIP MATTERS

If there is pending an application for restraining orders under the Domestic Violence Prevention Act or the Civil Harassment Prevention Act which involves a party to a pending Guardianship matter, the hearing on the restraining orders will be scheduled and heard by the Guardianship APJ.  Any restraining order papers related to a guardianship proceeding shall be filed at Family Court.


(Eff. 7/01/10)

 

E. OBJECTION TO GUARDIANSHIP

Individuals objecting to a petition to establish a guardianship may use the local form entitled Objection to Guardianship (Attachment PB-4043).

(Eff. 7/01/12)

F. DUTIES OF GUARDIAN

To assure that their duties and obligations are understood, each guardian must file with the Court, before letters of guardianship are issued, the Judicial Council form entitled "Duties of Guardian" (State form GC-248 ). The form may be signed and submitted prior to the date set for hearing.

(Eff. 1/01/08)

G. ATTENDANCE AT THE HEARING

The proposed guardian, the petitioner, and the petitioner's attorney must attend the hearing. The guardian will receive instructions concerning the guardian's duties immediately following the hearing.

(Eff. 7/26/00)

H. CONTESTED GUARDIANSHIP

(1) FAMILY GROUP CONFERENCES/MEDIATION

If there is a contested Guardianship of the Person or a contested Petition for Visitation in a Guardianship matter, the Court may order the parties to participate in mediation or one or more Family Group Conferences through Family Court Services (FCS) or a private mental health professional agreed to by all parties. The referral to a Family Group Conference will usually be made at the first hearing where any party objects to the guardianship or a request for visitation. Mediation is confidential, whereas Family Group Conferences are not confidential. All parties and their counsel may participate in the conferences, along with counsel for the minor(s). The minor(s) may be required to attend any Family Group Conferences at the discretion of the person conducting the conference or as ordered by the Court.

(2) EMERGENCY SCREENINGS

In any case in which an emergency exists, the Court may order a staff member of FCS to conduct an “emergency screening” (a preliminary and limited evaluation). The purpose of the screening shall be to provide the Court with recommendations regarding the temporary custody, visitation, and related conditions for the minor children who are the subject of the guardianship.

When an emergency screening is ordered, the Order shall be made on a Probate Order for Emergency Screening and the Emergency Screening Instructions (Attachment PB-4046 ) shall be served on all parties ordered to the emergency screening.

(Eff. 1/01/11)

Emergency screenings shall be governed by, and conducted according to, Local Family Rules 2C(6) and 2D(1) through 2D(7).

(Eff. 1/1/2017)

(3) EVALUATIONS


The Court may, in its discretion, order an evaluation by FCS regarding issues relating to a contested guardianship. Such an evaluation shall be a supplement to the report of the Court Investigator. Evaluations shall be governed by, and conducted according to, Local Family Rules 2C(3) through 2C(5) and 2D(1) through 2D(7).


(4) EX PARTE APPLICATION TO BE RELIEVED AS COUNSEL FOR MINOR
CHILD


Appointed counsel may apply via an ex parte application and order to be relieved as the counsel for minor child. The attorney for the minor(s) shall serve the parties or attorneys for the parties the Ex Parte Application and Order to be Relieved as Counsel for Minor Child (attached
form PB-4073) along with a blank Response to Application to be Relieved as Counsel for Minor Child (attached form PB- 4074). Parties or attorneys for the parties will have 21 calendar days from date of the application to respond to the request. Responses shall be served on the counsel for the minor child and all other parties. If no response is received, the court may grant the request if good cause exists.

If a response is received and the party or counsel for a party objects to the request to be relieved, a Status Conference may be set by the court to consider the
objection.

(Eff. 7/1/2019)

I. CHANGE OF RESIDENCE OF GUARDIAN OR WARD

When the address of the ward will be changed, the Pre-move Notice of Proposed Change of Personal Residence of Conservatee or Ward (Judicial Council form GC-079 ), and also the Post-Move Notice of Change of Residence of Conservatee or Ward (Judicial Council form GC-080 ) must be filed with the Court and a copy mailed to the Court Investigator. This is in addition to the Notice requirements of Probate Code § 2352 and CRC 7.1063.

When the address of the guardian will be changed, the Notification of Change of Address of Conservator/Guardian (Attachment PB-4047 ) must be filed with the Court and a copy mailed to the Court Investigator.

(Eff. 1/01/11)

J. USE OF WARD'S ASSETS FOR SUPPORT

If a ward has a living parent or receives or is entitled to support from another source, prior Court approval must be obtained before using guardianship assets for the ward's support, maintenance, or education. (See Probate Code § 2422.) The petition must set forth the financial inability of the parent or parents or other circumstances that would justify use of the guardianship assets. Such request for Court approval may be included in the petition for appointment of guardian. An order granting such petition should be for a limited period of time, usually not in excess of six months or for a specific and limited purpose.

(Eff. 7/26/00)

K. ACCOUNTINGS

(1) REFERRAL TO COURT INVESTIGATOR

At the time of filing of the guardian's accounting, a "Referral for Court Investigator & Questionnaire - Guardianship" form (Attachment PB-4005 ) must be submitted, with the notice of hearing and the original accounting, for review by the Court Investigator. See also Rule 9.A.(1) and (2) on the format of accountings and on accounting compliance dates.

(Eff. 7/01/12)

(2) ACCOUNTING REQUIRED AT TERMINATION UNLESS WAIVED; ACCOUNTING COMPLIANCE DATES

At termination of a guardianship of the estate, an accounting as required by CRC 7.1004(c) must be filed unless waived by a ward who has reached majority pursuant to Probate Code § 2627 (a). See CRC 7.1007(a); see also Section 9.A.(2) on the form of accounting and accounting compliance dates; and, the fee provisions of Section 11. V. (4) in the event that the guardian of the estate is a private professional fiduciary.

(Eff. 7/01/13)

L. TERMINATION OF GUARDIANSHIP OF THE PERSON

At the time of filing of a petition to terminate a guardianship a "Referral for Court Investigator & Questionnaire - Guardianship" form (Attachment PB-4005 ) must be submitted with the notice of hearing and the original petition for review by the Court Investigator. Individuals objecting to a Petition to Terminate Guardianship may use the local form entitled Objection to Petition to Terminate Guardianship (Attachment PB-4039 ).

(Eff. 7/01/12)


M. TEMPORARY GUARDIANSHIPS

(1) PETITION FOR APPOINTMENT

The petition for appointment of a temporary guardian must be filed with or after the filing of a petition for appointment of a permanent guardian. The petition must state facts establishing the urgency requiring the appointment of a temporary guardian. A situation requiring immediate action to protect the health, welfare, or the estate of the proposed ward will be sufficient. Ordinarily, a situation requiring immediate action constitutes good cause.

(2) PRIOR REVIEW OF PETITION

All petitions for a temporary guardianship must be presented to the Probate Examiner's office for review before presentation to the Court.

(Eff. 7/01/02)

(3) NOTICE

Since a petition for temporary guardianship is ordinarily filed only in cases requiring immediate action, the Court may dispense with the 5-day-notice requirement. Petitioner must comply with the requirements of CRC 7.1012.  If notice is dispensed with by the Court, the petition may be heard on an ex parte basis. Persons obtaining an ex parte order must reserve a date for reconsideration within thirty days, pursuant to Probate Code § 2250(d).

(Eff. 7/01/08)

(4) LETTERS OF TEMPORARY GUARDIANSHIP

Letters of temporary guardianship expire on the appointment of a general guardian.

(Eff. 7/26/00)

(5) POWERS OF TEMPORARY GUARDIAN

The temporary guardian has only those powers allowed by the Probate Code or specifically granted by the Court. The Court generally grants only the powers necessary to meet the situation that has caused the application for a temporary guardianship.

(Eff. 7/26/00)

N. REMOVAL OF GUARDIAN

Individuals requesting removal of a guardian may petition the Court for an order for removal. The petitioner may use the local form entitled Petition to Remove Guardian (Attachment PB-4041 ). Anyone objecting to a petition to remove the guardian may use the local form entitled Objection to Petition to Remove Guardian (Attachment PB-4036 ).

(Eff. 1/01/08)

O. VISITATION

Individuals requesting visitation orders in guardianships may petition the court for an order for visitation. The petitioner may use the local form titled "Probate Petition for Visitation" (Attachment PB-4013 ), and the local form titled "Visitation Order (Probate)" (Attachment PB-4011 ) with Judicial Council form FL-341  titled “Child Custody and Visitation Order Attachment.”

(Eff. 7/01/06)

P. FIXING RESIDENCE OF A WARD OUTSIDE CALIFORNIA

The residence of a ward who is under a guardianship of the person and who is a California resident may be fixed outside of California only upon first obtaining the permission of the Court. Unless a longer period is otherwise specified by the Court, the ward must be returned to California within four months unless a guardianship proceeding (or its equivalent) is commenced in the place of the new residence. If a ward is not returned to California, a declaration must be filed showing proof of the establishment of the guardianship (or its equivalent) in the new jurisdiction. See Probate Code §2352. Petitioner must submit with the local form entitled "Referral for Court Investigator & Questionnaire -- Guardianship" (Attachment PB-4005 ) the notice of hearing and the original petition to fix the residence of the ward outside of California for review by the Court Investigator.

(Eff. 7/01/12)




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