Guardianship of Edward Isaac Esparza

Case Number

22PR00589

Case Type

Hearing Date / Time

Tue, 05/06/2025 - 09:00

Nature of Proceedings

First Accounting and Report of Guardian

Tentative Ruling

Probate Notes:

The following discrepancies must be corrected before the Court can approve the accounting:

Discrepancy no. 1 – Notice is defective.  Petitioner must serve notice of the accounting pursuant to Probate Code section 1460. Notice of Hearing must be served on mandatory Judicial Council form GC-020.  Notice in this case was not served on the ward, and GC-020 was not used to give the Notice of Hearing.

Discrepancy no. 2 – Petition must be verified (PC 1021) & signed by attorney (CCP 128.7)

Discrepancy no. 3 – Cash has not been invested and maintained in interest bearing accounts. (Prob. Code, §1064(a)(5).)

Discrepancy no. 4 – Guardian is using ward’s funds to pay for necessities of life, and is allowing the ward to spend funds on the foibles of youth (several video games, VR headset, junk food, etc. purchases). Parents have an absolute, non-delegable, Family-Code-duty to provide support to the child regardless of whether the other parent shares the burden.  (Fam. Code, §§3900,   4053(a).)  This is most notable in cases where one parent dies, and a guardian is appointed over the child.  In both cases, a parent’s duty to provide full support to the child is not altered or delegated. (See e.g. Sidman v. Sidman (Colo. App. 2009) 240 P.3d 360, 362 [“A guardian “has essentially the same authority and responsibilities with regard to the child as a parent would have, with the exceptions that the guardian typically does not provide the financial resources to support the child and serves solely at the pleasure of the appointing court.”].  See also Unif. Prob. Code, § 5-209. Rights and Immunities of Guardian. [“A guardian need not use the guardian's personal funds for the ward's expenses.”].)  A guardian must, therefore, pursue all means necessary to obtain support for the ward from the parent of the ward, and not use the ward’s funds for the necessities of life, unless the parent is incapable of providing that support to the ward.

Discrepancy no. 5 – Breach of Fiduciary Duty. The relationship of guardian and ward is a fiduciary relationship that is governed by the law of trusts, except as provided in this division.  Thus, all trustee duties are applicable to guardians. (Prob. Code, § 2101.)  The following fiduciary duties appear to have been breached by the transactions listed beside them:

Imprudent management.  Guardian allowed ward to spend several thousand dollars on clothes, video games, junk food, etc. Excessive spending will waste the estate so the ward has no estate to ascend to at the age of 18. A guardian has the duty to “Manage the estate primarily for the ward's long-term benefit if the ward has a parent available who can provide sufficient support.” (CRC, Rule 7.1009(b)(1).)

Discrepancy no. 6 – Guardian submitted no account statements proving the balances claimed in the accounting. Account statements are not original account statements (Prob. Code, § 2620) Account statements must be submitted, and those statements must support balance reported to be on hand in account, or a detailed reconciliation.  (See Local Rule 1744.)  Title on account must reflect the guardianship. (CRC 7.1009(a).)

Discrepancy no. 7 – Guardian submitted bills from three different attorneys without explanation. A supplement is required to explain why the Court should allow payment to Michael Clayton and Timothy Mishler. Please explain in detail why these two attorneys were retained, why their retention was necessary, and how their services benefited the estate.

Appearances:

The court is open to the public for court business. The court is also conducting hearings via Zoom videoconference.

Meeting ID: 160 543 3416

Passcode: 5053334