Guardianship of Peterson

84 Cal.App.2d 541 (1948) Guardianship of the Person and Estate of CORA STONE PETERSON, an Incompetent Person. CORA STONE PETERSON, Appellant,

v.

WELLS FARGO BANK & UNION TRUST Co. (a Corporation), as Guardian, etc., Respondent.

Civ. No. 13527. California Court of Appeals. First Dist., Div. One.

Mar. 25, 1948. James M. Hanley for Appellant.

Harold C. Brown, Saul Perlis, Milton Marks and Morris Lowenthal for Respondent.

WARD, J.

Appellant seeks a reversal of an order appointing the Wells Fargo Bank & Union Trust Company, guardian [543] of the estate of Cora Stone Peterson, an incompetent person, upon the ground of the court's lack of jurisdiction and the ground of insufficient evidentiary support.

[1] Appellant contends that the several requirements of section 1461 of the Probate Code must be strictly followed before jurisdiction to appoint a guardian is acquired. No authority so holding has been cited, and the decisions of the Supreme Court concerned with said section do not support appellant's contention. (Buchanan v. Superior Court, 209 Cal. 408 [287 P. 474]; Guardianship of Waite, 14 Cal.2d 727 [97 P.2d 238]; Guardianship of Andrews, 17 Cal.2d 500 [110 P.2d 399].)

The decisions relied on by appellant hold that the requirement of section 1763 of the Code of Civil Procedure, the basis of section 1461 of the Probate Code, that "the clerk of the said court must cause a notice to be given to the supposed insane or incompetent person of the time and place of hearing the case, not less than five days before the time so appointed" is jurisdictional. (Snyder v. Superior Court, 206 Cal. 346 [274 P. 337]; Grinbaum v. Superior Court, 192 Cal. 528 [221 P. 635].) A holding that a statutory requirement as to the giving of notice to an alleged incompetent is a prerequisite to the vesting of jurisdiction is not synonymous with a holding that the following requirements of section 1461 of the Probate Code are jurisdictional: (1) that the petition set forth "the names and residences, so far as they are known to the petitioner, of the relatives of the alleged insane or incompetent person within the second degree residing in this State"; (2) that "notice of the nature of the proceedings and of the time and place of the hearing shall be mailed ... to each of such relatives"; (3) that a citation setting forth the time and place of hearing "shall be personally served on the alleged insane or incompetent person in the same manner as provided by law for service of summons at least five days before the time of hearing"; and (4) that "Such person, if able to attend, must be produced at the hearing, and if not able to attend by reason of physical inability, such inability must be evidenced by the affidavit and certificate of a duly licensed physician or surgeon, or other duly licensed medical practitioner ... to the effect that such patient is unable to attend, shall be prima facie evidence of that fact."