TUTELA-TUTORE. - Tutelage (tutela, patrocinium, praesentia) is, according to the jurist Servius (fr. 1, pr. D. 26, 1), “vis ac potestas ad tuendum cum, qui propter aetatem sua sponte se defendere nequit, iure civili data ac permissa”. The tutor is the person appointed to care for the person of the unemancipated minor or the interdicted person, to represent him in all civil acts, and to manage his property as a good head of household, carrying out not only acts of ordinary administration but, with due precautions, also acts of extraordinary administration and disposition (Inst. 1, 13).
The characteristics of tutelage are: a) the public nature of the office (munus publicum; nam et tutelam et curam placuit munus publicum esse; Inst., I, 25); b) the obligatory nature of the function, since a person who has been called to it is not permitted to refuse to assume it and, once having assumed it, to renounce it, unless legitimate grounds exist for obtaining dispensation; c) its gratuitousness; according to Roman law, tutelage is an officium pietatis, and therefore it does not seem consistent with the dignity of the office or with the equality with which it must be exercised to put a price on the service; d) the generality of the power conferred upon the tutor; it is general in character, in the sense that it concerns both the person and the property of the person under tutelage (the ward); e) the individuality and unity of the power, which is assigned to one person and can never be divided or apportioned among several holders.
Different classes of tutelage may be established from two points of view: a) that of the person subject to it; b) that of the methods of conferral, that is, the manner in which the tutor is designated, the tutor being the person charged with exercising II. With regard to the person subject to tutelage (the ward), it may concern: 1) minors; 2) adults; in this case it applies to persons of unsound mind who have been declared interdicted. With regard to its conferral, tutelage may be: 1) testamentary, conferred by the father’s will; 2) legitimate, conferred naturally by law upon the nearest relative, except where some impediment excludes him from this office or legitimate reasons dispense him from accepting it; 3) dative, which, in the absence of the two preceding forms, is conferred by the Tribunal or magistrate upon a suitable and capable person.
I. GUARDIANSHIP IN ITALIAN LAW
In Italian law, the guardian is always appointed by the guardianship judge (art. 346 Italian Civil Code), who must, however, follow certain criteria in choosing the person. Thus, where the case concerns a non-emancipated minor, the judge must first appoint the person, if any, designated by the parent who last exercised parental authority; if there is no such designation, or if serious reasons oppose the appointment of the designated person, the guardian must preferably be chosen from among the minor’s ascendants or other relatives or relatives by marriage, after hearing the minor himself if he has reached the age of sixteen. In any event, the guardian must be a person suitable for the office, of irreproachable conduct, who offers assurance that he will educate and instruct the minor (art. 348). Where the guardian of an interdicted person is to be appointed, preference is to be given successively by the judge to the spouse of full age, unless legally separated, the father, the mother, the adult child, or the person possibly designated by the surviving parent by will, public instrument, or authenticated private writing (art. 424). In certain cases, an assistance institution may also be appointed guardian (art. 354).Certain categories of persons are instead declared by law itself incapable of performing the office of guardian, such as, for example, bankrupt persons who have not been removed from the register of bankrupts; those who have lost parental authority; those excluded from guardianship by written provision of the father; those excluded from another guardianship, etc. (art. 350).
The office of guardian is in itself obligatory and therefore cannot be refused, except in cases of exemption provided for by law. Those exempted include cardinals, presidents of legislative assemblies, and ministers (although they may renounce the exemption). Exemption upon request is granted to archbishops and bishops, ministers of religion with responsibility for souls, military personnel, persons who have reached the age of sixty-five, etc. (arts. 351–52). The guardian has powers over the minor analogous to those of the parent exercising parental authority (art. 357). The law, however, establishes greater safeguards and more intensive supervision.
The law generally regulates the exercise of guardianship through the following safeguards: a) the guardian’s oath to exercise guardianship faithfully and diligently (art. 349); b) the preparation by the guardian of an inventory of the ward’s property (arts. 362–67); c) the provision by the guardian of security proportionate to the nature and extent of the ward’s estate, unless there is just cause for release from this obligation (art. 381); d) authorization by the guardianship judge or the Tribunal, so that the guardian may perform certain acts (arts. 372, 374–376); e) the submission of accounts by the guardian annually to the magistrate or to the persons designated by law, or, in any event, at the end of the guardianship administration (arts. 385–86).
Given the nature of the relationships existing between guardian and minor or interdicted person, and between guardian and emancipated minor, the limitation period is suspended and therefore does not run (art. 3941). Among the rights that belong to the guardian in relation to his wards is that of parental authority (v. PATRIA POTESTÀ), which also entails duties of education, supervision, administration, etc.
Despite the gratuitous nature of the office of guardian, the guardianship judge may award an allowance, taking into account the estate and the difficulties of administration (art. 379).
The rights of parental authority vested in the guardian correspond to duties on the part of his ward, namely respect, obedience, etc. (art. 358). These prescriptions evidently have an above all moral content, binding even in conscience, before any intervention by the judge.
II. TUTELAGE IN THE CIC
For the regulation of this institution, canon law refers for the most part to civil laws; it does, however, contain certain prescriptions that take the guardian into consideration for certain purposes, especially procedural ones; moreover, in its terminology it is somewhat uncertain, using the terms guardian and curator indiscriminately.In relation to parental authority, the minor, even when under a guardian, is exempt from it in all those cases in which he would be exempt from it in relation to his parents (can. 89; cf. cann. 542, 974, 1352, 1648 § 3). He has the guardian’s domicile, but after the age of seven he may have an almost-domicile of his own (can. 93 §§ 1–2). The guardian acts and answers in court on behalf of the ward (can. 1648 § 1). In the event of a conflict of rights between the guardian and the ward, the latter shall appear in court through a curator appointed by the judge (curator ad litem: can. 1648 § 2). In proceedings involving the ward, the guardian is incapable of giving testimony (can. 1757 § 3), of exercising the office of expert (can. 1795 § 2), and of acting as judge (can. 1613). Under canon law, the guardian has the faculty of choosing the church for the funeral or the burial of his underage ward (can. 1224, n. 1).
Again on the basis of parental authority, the guardian may invalidate the religious vows of his wards. These vows may be invalidated even when, having left guardianship, those who made them renew them, provided that they do not intend to bind themselves anew independently of the preceding vows.