Guardianship: Legal Protection of Minors and Disabled
Introduction
Guardianship is a legal institution designed to protect minors and individuals deemed disabled by a court ruling. It serves as a substitute for parental authority when necessary, encompassing the care of the ward’s person and property. The guardian is granted powers of representation in both personal and property matters, with exceptions established by law or the incapacitation ruling.
Who Needs Guardianship?
- Unemancipated minors not under parental authority.
- Individuals declared disabled by a court sentence.
- Minors under parental authority when parental rights are suspended.
- Children in situations of distress.
Establishing Guardianship
Except for cases involving children in distress, establishing guardianship requires a judicial process. The judge appoints the guardian, who can be one or more natural or legal persons. The court prioritizes the following when selecting a guardian:
- The ward’s spouse (if applicable).
- Parents (only for disabled children, and if designated in a will).
- Closest descendant, parent, or sibling designated by the judge.
- Other individuals or non-profit legal entities that meet specific requirements.
Obligation to Promote Protection
Prosecutors, courts, relatives, and individuals caring for a child or incapacitated person are obligated to initiate guardianship proceedings when necessary.
Hearing and Appointment of a Guardian
Before appointing a guardian, the judge conducts a hearing involving close relatives, relevant individuals, and the ward (if they are at least twelve years old). The chosen guardian must be capable and qualified.
Guardian’s Responsibilities
Inventory of Assets
Within sixty days of appointment, the guardian must inventory the ward’s assets. This process involves court oversight and relevant individuals.
Management of Assets
The guardian manages the ward’s assets with due diligence, including defending legal interests and handling conflicts of interest.
Bond and Guarantee
The guardian may be required to provide a bond to ensure the fulfillment of their obligations. The court determines the amount and specific requirements.
Content of Protection
Personal Scope
The guardian ensures the ward’s well-being, providing physical and moral care, monitoring their behavior, and collaborating with individuals and institutions involved in their development.
Heritage Area
The guardian acts as the administrator of the ward’s estate, exercising diligence in managing all assets.
Power of Representation
The guardian represents the ward in legal matters, acting on their behalf and addressing their lack of capacity.
Exercise of Guardianship
When there is a single guardian, they handle all aspects of guardianship. When there are multiple guardians, responsibilities may be divided, but decisions affecting both personal and property matters should be made jointly.
Removal of Guardianship
A guardian can be removed for reasons such as: incapacity, unsuitability, violation of duties, negligence, or persistent conflict with the ward. The court initiates removal proceedings and appoints a new guardian.
Remuneration of the Guardian
The judge may grant the guardian remuneration based on the ward’s estate and the work involved. The amount is determined considering the guardian’s efforts and the value of the ward’s assets.
Termination of Guardianship
Guardianship ends when: the ward reaches eighteen years of age (unless incapacitated), the ward is adopted, the ward dies, the ward is granted adult status, parental rights are restored, or a court ruling terminates the disability or replaces guardianship with conservatorship.