CURATELA, CURATORE. – Apart from the meaning (now almost entirely obsolete) of the term curator to designate certain persons placed in charge of particular public services, curatela currently means above all a private office (exercised by a curator), consisting in a complex of powers granted to the curator for the purpose of assisting capacity (v.) (a person under disability, an emancipated minor) or a person who is unable to safeguard his own interests (an absentee, an unborn child). tutela (v.), whose purpose, on the other hand, is to provide a representative for one who lacks capacity to act and is not subject to paternal authority.
In Roman law the institution of curatela principally concerned the furiosi, and subsequently also minors who had reached puberty and the mentally deranged; the institution of the curator of an absentee, of an unborn child, and of an undivided inheritance was also known.
In modern private law (in almost all legal systems), a curator is appointed for persons under disability (which may result from non-total mental illness, deaf-mutism or blindness from birth, prodigality, and, in certain countries, also from abuse of alcoholic beverages or narcotics) and for emancipated minors (v. EMANCIPAZIONE, ATTO DI); they may not perform all or certain acts exceeding ordinary administration except with the curator’s consent, and in the absence of such consent these acts are voidable (for Italy cf. Civil Code, arts. 90, 390–99, 415–32). Provision is also made for the appointment of special curators (who generally also have more or less extensive representative functions): for an incapable person or entity lacking a representative in legal proceedings (art. 78 of the Code of Civil Procedure); for one who is or may be in a conflict of interests with his legal representative or curator (arts. 320, 321, 356, 394 of the Civil Code), or with one who has the same legal representative as he does (art. 347 of the Civil Code); for a minor subject to paternal authority, if the parent improperly administers his property (art. 334 of the Civil Code); for an unborn child whose father dies during his wife’s pregnancy (art. 339 of the Civil Code); for one who has disappeared from the place of his last domicile or last residence, without further news of him being available (art. 48 of the Civil Code); and in certain other cases (cf. arts. 90 and 165 of the Civil Code).
Those entrusted with the following duties are also called curators: a) administering an undivided inheritance, that is, an inheritance not yet accepted and whose property is not possessed by any of those called to inherit (arts. 258–32 of the Civil Code); b) arranging for the liquidation of an inheritance accepted under benefit of inventory (art. 508 of the Civil Code); c) administering the bankruptcy estate (R. D. 16 March 1942, no. 267).
While, until the codification of 1917, canon law followed in this matter the terminology of Roman and common law, it currently uses the terms “tutor” and “curator” somewhat interchangeably, also because, in regulating these institutions, it relies for the most part on civil laws, which do not employ consistent terminology in all countries. Indeed, while the CIC contains a few provisions that take the curator into consideration for certain procedural effects, it never mentions him separately from the tutor (except in can. 93 § 1, where, however, it indicates one who, according to modern terminology, is a tutor).
The provisions of the CIC concerning the curator are: a) a judge, promoter of justice, or defender of the bond may not take part in a trial if he is in any way interested in it by reason of a curatela exercised by him (can. 1613); b) the curator represents his ward in legal proceedings, except in certain actions excluded from this rule; and it belongs to the Ordinary, after making the appropriate inquiries, to decide whether this task should be performed by the civil curator or instead by another appointed by the Ordinary himself (cann. 1648–51, 1725, and authentic interpretation of 25 January 1945); c) one who is curator of one of the parties is incapable of serving as a witness or expert in a trial (cann. 1757 § 3 no. 1 and 1795 § 2, although not explicitly).