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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. LOCATION OF GUARDIANSHIP HEARINGS WHERE THERE ARE CASES IN BOTH PROBATE AND FAMILY COURT
D. LOCATION OF HEARINGS ON RESTRAINING ORDERS WHERE THERE IS A PENDING GUARDIANSHIP
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.

C. LOCATION OF GUARDIANSHIP HEARINGS WHERE THERE ARE CASES IN BOTH PROBATE AND FAMILY COURT

(1) If there is an action pending in Family Court regarding the custody of a minor child and a subsequent action for Guardianship of the Person or Person and Estate of the minor child is filed in the Probate Court, the cases should be coordinated for hearing purposes and assigned for hearing to the Probate Court 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 California Rules of Court, Rule 5.154, the proposed guardian, temporary guardian, or guardian, may be joined into the Family Court action as a party.

(Eff. 7/01/12)

(2) If there is a Guardianship of the Person or Person and Estate of a minor child pending in the Probate Court and a subsequent action regarding the custody of the child is filed in Family Court, the cases should be coordinated for hearing purposes and assigned to the Probate Court Judge for hearing in the Probate Court. 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.

(Eff. 7/01/12)

(3) Petitions for Guardianship of the Estate only of a minor child will be heard in the Probate Court, even if there is a Family Court action on file. The two files shall be coordinated and linked in the computer system, so that both judges are aware of the other case.

D. LOCATION OF HEARINGS ON RESTRAINING ORDERS WHERE THERE IS A PENDING GUARDIANSHIP

If there is 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 and is related to the Guardianship matter, the hearing on the restraining orders will be scheduled and heard in the Probate Court. The Family Court and the Probate Court will coordinate scheduling these hearings. The initial restraining order request and any temporary restraining orders shall be filed at Family Court. Any Orders After Hearing that are a result of a hearing at the Probate Court will be filed at the Probate Court Clerk’s Office.

(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)

If the parties agree to and sign the screening recommendations, they shall be submitted to the Court for review and signature.

If a party objects to the screening recommendations, a brief hearing, generally less than 30 minutes, will be held on the day of the screening, or as soon as possible.

Fees will be charged for emergency screenings by FCS, absent a Fee Waiver.

(3) Documents provided to evaluator or screener

Any documents provided to an evaluator or screener shall be accompanied by either a Judicial Council form  for Proof of Service or the FCS "Declaration of Mailing or Personal Service" form , except for documents handed to an evaluator or screener in the presence of the other party or counsel (in which case copies shall be provided at the same time to the other party or counsel). Whichever form is used, the number of submitted pages shall be stated. FCS may require a party to index and prioritize the review of submitted documents.

(4) Miscellaneous

a. Complaints: A complaint may be submitted by letter to FCS with proof of service of a copy to all other parties.

b. Challenges: Peremptory challenges to FCS evaluators, private evaluators appointed by the Court, and mental health professionals appointed by the Court to do psychological testing shall not be permitted. Challenges for cause of such individuals shall first be directed to the director of FCS. If that does not resolve the matter, such a challenge shall be directed in writing to the Probate Judge. Copies of any challenges for cause shall be provided to all counsel and self-represented parties.

(5) Evaluations

a. 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. All parties and their counsel, along with counsel for the child(ren), shall attend the initial appointment for the evaluation. The evaluation report shall be completed within 90 days from the initial appointment with the evaluator.

b. The director of FCS (or the director’s designee) shall have the exclusive responsibility for case assignment to evaluators within FCS.

c. Child(ren) must be present for the initial evaluation appointment when (and only when) a party participating in the evaluation resides more than 100 miles from San José, or the Court or the evaluator directs that the child(ren) be available. When the child(ren) are required to be present under this Rule, the custodial party shall bring an adult who can care for the child(ren). All parties shall cooperate with an evaluator in arranging times for the evaluator to see the child(ren) after the initial evaluation appointment, if requested by the evaluator.

d. The evaluator will interview the parties, separately or jointly as appropriate, and their attorneys, and may schedule additional interviews with the parties, child(ren), or others to complete the evaluation. If one attorney fails to appear at the initial appointment, as required, the evaluator has the discretion to proceed with the parties only and to reschedule the appointment with all attorneys. Sanctions may be imposed, upon notice, for the attorney’s failure to appear.

e. Confidentiality of Evaluation Reports: Evaluation reports are confidential and shall be sent to attorneys and self-represented parties only. The confidential report shall not be duplicated, disseminated, or in any other way provided or shown to any individual not a party to the proceedings, except consulting experts, court ordered therapists, and court ordered evaluators. The evaluation report shall be identified as a confidential document filed with the Court.. Evaluation reports, including psychological evaluations, shall not be attached as exhibits to any papers filed with the Court.

(Eff. 7/01/12)

f. Fees: Fees will be charged by FCS for evaluations, unless a waiver is granted. When the Court orders a custody/visitation evaluation through FCS, the parties shall submit deposits or fee waiver requests to FCS within 5 court days of receipt of the Court’s order.

g. Any party shall have 15 calendar days after the date of mailing of the evaluation recommendations to file and serve written objections to the recommended order.

h. If objections are filed, the parties shall contact the evaluator to schedule a meeting to discuss the objections. This meeting shall take place before the Guardianship Settlement Conference (GSC). If any party fails to cooperate in setting, or fails to attend, this meeting after objections, the Court at the GSC may sign the recommended order and may order sanctions.

i. Objections: Objections shall be in writing and shall include the following:

i. the specific paragraphs and language to which the party objects;
ii. the reasons for the objections; and
iii. the proposed modified language.

Objections shall be filed with the Court, along with a proof of service on all counsel or self-represented parties. FCS or the private evaluator must be served with an endorsed filed copy of the objections, which must also be shown on a proof of service.

If no objections are filed within 15 calendar days from the date of the mailing of the evaluation recommendations, the recommended order shall be submitted to the Court for review and signature.

(6) GUARDIANSHIP SETTLEMENT CONFERENCE (GSC)

a. If the parties are not able to resolve the objections in the meeting with the evaluator following the filing of the objections, a GSC shall be calendared with the Court. The GSC shall be set within 30 days of the meeting with the evaluator.

b. All attorneys and parties and the evaluator shall attend the GSC at the scheduled time and place, to address the settlement of all contested issues or the issues to be tried.

c. Statement of Issues: No settlement conference statement shall be required for a GSC; however, each party shall file and serve a Statement of Issues at least 10 calendar days before the GSC. The Statement of Issues shall clearly set forth any remaining issues and any proposed alternative language. Previously filed objections may be attached and incorporated by reference. In addition, the Statement of Issues shall state the time estimated for trial and provide a list of witnesses anticipated to be called at trial. Each party shall bring two copies of the Statement of Issues to the GSC.

d. If agreement is not reached at the GSC, the Court may set the case for trial or hearing.

e. Failure to Appear: If a party fails to appear at the GSC, a hearing may be held that day and custody/visitation orders may be made. In addition, on notice to the parties, the Court may order sanctions for the failure to appear.

(Eff. 1/01/09)
 

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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