Tutela del menor y curatela

Guardianship and curatorship are, fundamentally, the two main institutions of legal protection and guardianship in the Spanish legal system with respect to minors and incapacitated persons. To these two institutions should be added, to a lesser extent, that of the legal guardian. Here we are going to tell you everything you need to know about them.

Guardianship

The guardianship is a figure by means of which an adult assumes the legal guardianship of a minor or incapacitated person. In this sense, he or she assumes the obligation to provide him or her with comprehensive training and an adequate education, as well as to represent him or her in his or her acts and to administer his or her assets.

This institution must be established by a court order in certain cases. Specifically, the legislation refers to minors who are not emancipated and who, due to abandonment or death, are not under the parental authority of their parents. It also refers to minors in a situation of abandonment and those who, due to incapacity, are subject to an extended parental authority even though they are of legal age. 

Who chooses the guardian?

The judge is always responsible for the choice of the guardian. In this sense, he/she usually chooses, in this order, his/her spouse, his/her parents if they are still alive, those who were appointed by them in their will, his/her siblings or children or the person who, even if it is a third party, he/she considers to be sufficiently close and qualified.

The law also establishes in which cases a person cannot accede to the guardianship of another person. These are:

- Those who have been removed from another guardianship previously.
- Those who cannot exercise parental authority due to a court decision. 
- Those who are in a situation of deprivation of liberty. 
- Those who have committed offences incompatible with the assumption of guardianship. 
- Those who cannot be guardians for financial or employment reasons. 
- Those who maintain a manifest enmity with the person in need of guardianship. 
- Those who have conflicts of interest with the person under guardianship. 
- Those who are excluded by a testamentary disposition. 
 

For his part, a subject may also renounce, for reasons of age, health, professional occupation or personal or economic incapacity, the guardianship of the minor. This must always be done within 15 days of the judge making the appointment or, failing that, from the time when the reason for the waiver arises.

In addition, guardianship is automatically terminated when the minor reaches the age of 18, when the person with parental authority regains it or when the ward dies. They can also be removed at the request of the Public Prosecutor's Office by a judge ex officio. Legal guardians are entitled to receive between 4% and 20% of the minor's income and the yield of his or her assets. 

In addition, during the process of granting guardianship or trusteeship, which will be discussed below, the judge may require that all the necessary tests be carried out to determine the capacity of understanding of the person concerned. Obviously, in the case of minors who are not emancipated and who are under 18 years of age, this is not necessary, but it is necessary for the rest. In addition, you can ask the candidate for guardian or curator to vouch for his or her capacity to assume the position. 

Acts requiring the authorisation of a judge

A legal guardian acts on behalf of and in the name of the ward. However, in order to carry out certain actions, he or she needs a judge's authorisation. This happens in the following cases:

- Placing the ward in a special education or mental health facility. 
- Selling or transferring his or her real estate, business or jewellery. 
- Intervening in the partition of a common thing, such as an inheritance. 
- Accept agreements, waive rights or go to arbitration. 
- File lawsuits except in cases of extreme necessity. 
- Contract financial products. 
- To make extraordinary expenses using the assets of the person under guardianship. 

Guardianship

The curatorship, in legal terms, has many similarities with the guardianship, although it is true that they are not synonymous. In fact, it is also a position that can be relinquished in the circumstances described above and can be remunerated from the same amounts as specified above.

It must be said that only those who are incapacitated or who, failing that, are emancipated minors, can be subject to the institution of curatorship. Likewise, it is also applicable to those who have been declared prodigals, i.e. who cannot administer their assets. 

The purpose of this legal figure is to complete the capacity of the persons affected by the problems described above. In this sense, when they are not able to carry out a specific act by themselves, it is necessary that the figure of the curator intervenes. As in the previous case, he or she must be appointed in the court ruling that declares and certifies the situation of incapacity. 

The legal guardian

The guardianship is not usually a common figure, but that of the legal guardian is even less so. Specifically, it is a person totally unrelated to the person affected by the problem who becomes the guardian, curator or even the person's parental authority at a given moment.

The first case in which the presence of a legal guardian is necessary is when a guardian or curator is removed from his or her functions at the request of the public prosecutor or any other person with an interest in the matter. Such removal must always be carried out by a judge ex officio. The judge also has the power to do so on his own initiative. During the period of time it takes to appoint a new guardian, the legal guardian is responsible for looking after the interests of the incapacitated person or the minor. 

On the other hand, the ombudsman can also be appointed when there is a conflict of interest between the guardian or tutor and the ward or ward. Similarly, the judge can determine the need for one for as long as he or she needs to decide who is the most capable guardian or curator. During the time in which he or she exercises his or her functions, the legal defender is governed by the same rules as the guardians or curators, as the case may be. 

The need for a lawyer

Although in some cases the process of granting guardianship or conservatorship is fairly quick and straightforward, in other cases it can become more cumbersome than desirable. This is especially common when it has not been specified in the will who the guardian or curator should be or when there are several candidates and conflicting interests. 

This is why, in such cases, the use of a lawyer is absolutely essential. Undoubtedly, they are the best experts in this type of process and the ones who can give the most personalised and comprehensive advice. Contact G. Elías y Muñoz Abogados now.