GUARDIANSHIP, GUARDIAN. - Apart from the meaning (now largely obsolete) of the term curator to indicate certain persons placed in charge of particular public services, at present by curatela is meant above all a private office (exercised by a curator), which consists in a complex of powers given to the curator for the purpose of assisting a person having limited (v.) legal capacity (the person declared partially incapacitated, the emancipated minor) or a person who finds himself in the impossibility of protecting his interests (the absentee, the unborn child). It is therefore distinguished from guardianship (v.), which has instead the purpose of giving a representative to one who lacks capacity to act and is not subject to paternal authority.
In Roman law the institution of curatela concerned principally the furiosi, and subsequently also minors past puberty and the insane; the institution of the curator of the absentee, of the unborn child, and of the estate lying vacant (hereditas iacens) was also known.
In modern private law (in almost all legislations) a curator is appointed to persons declared partially incapacitated (who may be so on account of mental infirmity that is not total, of deaf-mutism or blindness from birth, of prodigality, and, in certain countries, also of abuse of alcoholic beverages or of narcotics) and to emancipated minors (v. EMANCIPATION); these cannot carry out all or certain acts exceeding ordinary administration except with the assent of the curator, and in the absence of such assent these acts are voidable (for Italy cf. Civil Code, arts. 90, 390-99, 415-32). Provision is furthermore made for the appointment of special curators (who generally also have functions, more or less extensive, of representation): for the person lacking capacity or for the body that lacks a representative in judicial proceedings (art. 78 of the Code of Civil Procedure), for one who is or may find himself in a conflict of interests with his legal representative or with his curator (arts. 320, 321, 356, 394 of the Civil Code) or with one who has the same legal representative as he (art. 347 of the Civil Code), for the minor subject to paternal authority, if the parent administers his patrimony badly (art. 334 of the Civil Code), for the unborn child whose father dies during the 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 any further news of him being had (art. 48 of the Civil Code), and in certain other cases (cf. arts. 90 and 165 of the Civil Code).
Those are also called curators who are charged: a) with administering the estate lying vacant, that is, the estate not yet accepted and of which none of those called has possession of the goods (arts. 258-32 of the Civil Code); b) with providing for the liquidation of the estate accepted with benefit of inventory (art. 508 of the Civil Code); c) with administering the bankruptcy estate (Royal Decree of 16 March 1942, no. 267).
Canon law, while until the codification of 1917 it followed in this matter the terminology of Roman and common law, at present uses in a rather promiscuous manner the terms "tutor" and "curator", also because for the discipline of these institutions it refers for the most part to the civil laws, which do not follow a constant terminology in all countries. And indeed the CIC, while it has few norms that take the curator into consideration, for certain procedural effects, never mentions him separately from the tutor (except in can. 93 § 1, where however it indicates what, according to modern terminology, is a tutor).
The norms of the CIC concerning the curator are: a) the judge, the promoter of justice, or the defender of the bond cannot take part in a process if they are in some way interested in it by reason of a curatorship exercised by them (can. 1613); b) the curator represents his assisted person in judicial proceedings, except in certain causes excepted from this rule; and it is for the Ordinary, after making the appropriate investigations, to decide whether this task should be carried out by the civil curator or instead by another appointed by the Ordinary himself (cans. 1648-51, 1725, and authentic interpretation of 25 Jan. 1945); c) he is incapable of being a witness or an expert in judicial proceedings, who is curator of one of the parties (cans. 1757 § 3 no. 1 and 1795 § 2, although not explicitly)
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