Legal guardian: rights and obligations

There are people who, being in situations of special vulnerability, need to be subject to the protection provided by legal guardianship. Generally speaking, these are usually minors who are not emancipated and who have lost their ascendants and people who are judicially incapacitated because they are not in full possession of their physical or mental faculties. Here we will focus on this issue in order to better understand what it means and the obligations it entails.

What does legal guardianship mean?

Guardianship is a legal institution whose purpose is to protect and guard a person and/or his/her property. This must be done by a subject who will be judicially appointed as legal guardian and will be executed over a person close to him/her who does not have the capacity to govern himself/herself, having been declared incapable by a court ruling, or over minors who are not emancipated.

Who can be the legal guardian of another person?

The legal guardian of an incapacitated or unemancipated minor must be appointed by a judge in all cases. To see which persons can fulfil this role, we must turn to the provisions of article 234 of the Civil Code. This specifies that they have the possibility to assume this responsibility:

• The person who has been appointed by the person under guardianship, regardless of whether there is a family relationship or not.
• The parents of the ward.
• The spouse residing with the person to be guardian.
• Persons who have been designated in wills and other types of last will dispositions.
• Siblings, ascendants or descendants designated by the judge by means of a court ruling.

The order described above is, moreover, the one established by the Civil Code and to which priority must be given. However, whenever there are certain circumstances that make it necessary or advisable, the judge may alter it and grant guardianship to whomever he or she deems appropriate. In other words, it may be the spouse of the incapacitated person's spouse who is legally entitled to be guardian, but the judge may come to the conclusion that he or she is not the most suitable person and grant guardianship to a sibling.

On the other hand, the autonomous communities that make up our country may establish different orders of preference when it comes to appointing the legal guardian of an incapacitated person. Therefore, we recommend that you take a look at the civil legislation of the place where you live to make sure.

What are the obligations of the legal guardian towards the incapacitated person?

The first and probably the most important of the legal guardian's obligations towards the incapacitated or unemancipated person is to provide maintenance to the person under his or her guardianship. But, in addition, he/she also has to assume the following functions:

• Maintain a relationship of respect and consideration with the ward.
• Inform the judge of changes in the ward's state of health, personal, family and sentimental situation, place of residence and finances.
• If he/she is an unemancipated minor, the guardian must provide him/her with an education appropriate to his/her age.
• As the guardian can administer his or her property, he or she must also assume responsibility for any damage caused by his or her own actions.
• Annually, he or she must submit a report to the court that reflects the financial situation of the ward.
• In addition, from the moment he or she takes on the role of guardian, and within a maximum period of two months, he or she must submit to the court an inventory of the ward's assets, including debts, credits, charges and assets.
• At the end of the period of guardianship, either because the minor reaches the age of majority or because of the death or recovery of the incapacitated person, the guardian must submit to the court a report called the final accounting. He/she has 3 months from the cessation or termination of the guardianship.

What cannot a legal guardian do without judicial authorisation?

The Civil Code also specifies that judicial bodies have the obligation to protect you from the actions of your guardian. For this reason, it requires prior judicial authorisation from the guardian, who will, in any case, give priority to the interests of the ward when carrying out any of these acts:

• Sell, donate or transfer the ownership of any real estate or commercial property or that which has to do with industrial or intellectual property rights.
• To renounce inheritances, donations or legacies.
• To sell, donate or assign rights in rem.
• Waive credits.
• Grant guarantee rights (sureties, sureties, etc.) on third party obligations.
• Sign rental contracts on their property for a period of more than 15 years.
• Accept or give loans or credits.
• Cancel accounts on digital portals.
• Assent to, settle, withdraw or waive claims relating to their property or rights.
• Incorporate, split up, merge or dissolve companies.
• Assume the status of partner in a non-limited liability company.

Is it possible to renounce being a legal guardian?

In all cases, a judge, by means of a court ruling, is the subject who can determine who assumes the position of guardian over an incapacitated or unemancipated minor. In principle, once this obligation is granted, it is not possible to renounce it by the pure will of the person appointed. However, there are a series of causes that make it possible to renounce the position of legal guardian. We can specify the following:

• The age of the person appointed is too old.
• Economic or personal conflicts with the person under guardianship.
• Working conditions that make it difficult for the guardian to carry out his/her duties with full guarantees for the ward.
• Previous or acquired physical or mental incapacity that disqualifies the guardian from carrying out his or her functions.

The waiver of guardianship by the incapacitated person can be made whenever any of these reasons are alleged, it can be carried out during the process of determining guardianship or when it has already been granted. However, in the latter case, the judge will have to restart the process and find another valid subject willing to carry it out. This process is called, within the judicial sphere, removal of guardianship. Until a new guardian is appointed, the previous guardian must continue to carry out his or her duties. When this happens, he or she will have to submit the final accounts referred to above.

But what happens if the guardianship is relinquished by a relative and there is no other guardian? In this case, if there is no one in the family environment who can assume the guardianship, the judge will assign this responsibility to a public or private legal person. The only requirement is that it is non-profit-making and that it is able to assume the obligations of guardianship and to protect the interests of the ward adequately.

Conclusions on legal guardianship

In short, the guardianship of incapacitated persons or unemancipated minors is a legal concept that seeks to protect the assets and rights of those persons who cannot do so for themselves. This is the reason why it is so important and why it is so protected in our Civil Code. We hope we have been of help and have cleared up any doubts you may have.

You can contact our family lawyers for any queries related to legal guardianship. We are available online anywhere in Spain.