TUTELA—TUTOR. — Tutelage (tutela, patrocinium, praesentia) is, according to the jurist Servius (fr. 1, pr. D. 26, 1): «vis ac potestas ad tuendum eum, qui propter aetatem sua sponte se defendere nequit, iure civili data ac permissa». The tutor is the person designated to take care of the person of the minor not emancipated or of the interdicted person, to represent them in all civil acts, and to manage their property as a good father of a family, performing not only acts of ordinary administration but also, with due caution, acts of extraordinary administration and disposition (Inst. I, 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, as it is not permitted for those called to it to refuse to assume it or to renounce it unless there are legitimate causes 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 and the purity with which it must be exercised to put a price on the work; d) the generality of the power conferred upon the tutor: it has a general character in the sense that it extends both to the person and to the property of the ward (pupil); e) the individuality and unity of the power, which is assigned to one person and can never be divided or fractioned among multiple holders.
Different classes of tutelage can be established, from two points of view: a) the person subject to it; b) the modes of conferment, that is, the manner in which the tutor, the person entrusted with exercising it, is designated. With regard to the person subject to tutelage (pupil), it may be: 1) of minors; 2) of adults; in the latter case, it applies to those of unsound mind declared interdicted. With regard to the conferment, tutelage may be: 1) testamentary, which is conferred by the father’s will; 2) legal, which is naturally conferred by law upon the nearest relative, except where some impediment excludes them from such an office or legitimate reasons exempt them from accepting it; 3) dative, which, in the absence of the two preceding types, is conferred by the Tribunal or magistrate upon a suitable and capable person.
I. Tutelage in Italian Law
In Italian law, the tutor is always appointed by the tutelary judge (art. 346 Cod. civ. ital.), who, however, in choosing the person must follow certain criteria, namely: if it concerns a minor not emancipated, they must first designate the person possibly determined by the parent who last exercised parental authority; if this designation is lacking or if serious reasons oppose the appointment of the designated person, the choice of tutor must be made preferably among the ascendants or other relatives or in-laws of the minor, and after hearing the minor themselves if they have reached the age of 16. In any case, the choice of tutor must fall upon a person suitable for the office, of irreproachable conduct, who can be trusted to educate and instruct the minor (art. 348). If it concerns appointing the tutor of an interdicted person, the judge must gradually prefer the spouse of majority age, unless they are legally separated, the father, the mother, the adult child, or the person possibly designated by the parent in a will or public deed or authenticated writing (art. 424). In some cases, a charitable institution may also be appointed as tutor (art. 354).Certain categories of persons are, however, declared by the law itself to be incapable of exercising the office of tutor, such as, for example, bankrupts not yet removed from the register of bankrupts; those who have lost parental authority; those excluded from tutelage by written disposition of the father; those excluded from another tutelage, etc. (art. 350).
The office of tutelage is in itself obligatory and therefore cannot be refused, except in cases of dispensation provided by law. Among those exempted are cardinals, presidents of legislative assemblies, and ministers (though they may renounce the dispensation). Those to be exempted upon request include archbishops and bishops, ministers of worship with cure of souls, military personnel, those who have reached the age of sixty-five, etc. (arts. 351–52). The tutor has over the minor powers analogous to those of the parent exercising parental authority (art. 357). The law, however, establishes greater safeguards and more intense controls.
The law generally regulates the exercise of tutelage with the following safeguards: a) the tutor’s oath to exercise tutelage with fidelity and diligence (art. 349); b) the tutor’s preparation of an inventory of the pupil’s assets (arts. 362–67); c) the tutor’s provision of security proportionate to the nature and extent of the pupil’s estate, unless there is a just cause for exemption from this obligation (art. 381); d) the authorization of the tutelary judge or the Tribunal for the tutor to perform certain acts (arts. 372, 374–376); e) the rendering of accounts by the tutor annually to the magistrate or the persons determined by law, or in any case at the end of the tutelary administration (arts. 385–86).
Given the nature of the relationship between tutor and minor or interdicted person, and between tutor and emancipated minor, prescription is suspended and therefore does not run (art. 2941). Among the rights that belong to the tutor with regard to their pupils is that of parental authority (v.), which also entails duties of education, supervision, and administration, etc.
Despite the gratuitousness of the office of tutor, the tutelary judge may assign an indemnity, taking into account the estate and the difficulties of administration (art. 379).
Corresponding to the tutor’s rights of parental authority are the duties of the pupil, which include respect, obedience, etc. (art. 358). These prescriptions evidently have a primarily moral content, obliging even in conscience, before any intervention by the judge.
II. Tutelage in the CIC
Canon law, for the regulation of this institution, largely defers to civil laws; however, it has certain prescriptions that take the curator into consideration for certain effects, particularly procedural ones. Moreover, the terminology is somewhat uncertain, using the terms "tutor" and "curator" interchangeably.With regard to parental authority, the minor is exempt from it in all cases in which they would be exempt in the presence of parents (can. 89; cf. can. 542, 974, 1352, 1648 § 3). The minor has the domicile of the tutor but, after the age of seven, may have a quasi-domicile of their own (can. 93 § 1–2). The tutor acts and answers in judgment for the pupil (can. 1648 § 1). In case of conflict of rights between the tutor and the pupil, the latter shall appear in judgment through a curator appointed by the judge (curator ad litem: can. 1648 § 2). In the pupil’s causes, the tutor is incapable of giving testimony (can. 1757 § 3), of exercising the office of expert (can. 1795 § 2), or of judge (can. 1613). According to canon law, the tutor has the faculty of choosing the church for the funeral or burial of the impubes pupil (can. 1224, n. 1).
Always based on parental authority, the tutor may invalidate the religious vows of their pupils. These vows may even be invalidated when the votaries, having left tutelage,