TUTELAGE-TUTOR. - Guardianship (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 guardian is he who is appointed to take care of the person of the unemancipated minor or of the interdicted person and to represent him in all civil acts and to manage his property as a good father of a family, performing not only acts of ordinary administration but, with the proper precautions, also acts of extraordinary administration and of disposition (Inst. 1, 13).
The characteristics of guardianship are: a) the public nature of the office (munus publicum; nam et tutelam et curam placuit munus publicum esse; Inst., I, 25); b) the compulsory character of the function, since it is not permitted to one who has been called to it to refuse to assume it and, having assumed it, to renounce it, unless there exist legitimate grounds for obtaining exemption from it; c) its gratuitousness; according to Roman law guardianship is an officium pietatis, and therefore it does not seem consistent with the dignity of the office and with the impartiality with which it must be exercised to set a price on one's work; d) the generality of the power conferred on the guardian; it has a general character in the sense that it covers both the person and the property of the person under guardianship (pupil); e) the individuality and unity of the power, which is assigned to one person and can never be split or divided among several holders.
Various classes of guardianship may be established, from two points of view: a) that of the person subject to it; b) that of the modes of conferment, that is, of the manner in which the guardian is designated, he being the person charged with exercising it. With respect to the person subject to guardianship (pupil), it may be: 1) that of minors; 2) that of persons of full age; in this case it takes place for the mentally infirm who have been declared interdicted. With respect to conferment, guardianship may be: 1) testamentary, which is conferred by the will of the father; 2) legitimate, which is conferred naturally by law on the nearest relative, except in the case where some impediment excludes him from such a charge or legitimate grounds exempt him from accepting it; 3) dative, which, in the absence of the two preceding, is conferred by the Tribunal or magistrate on a suitable and capable person.
I. GUARDIANSHIP IN ITALIAN LAW
In Italian law the guardian is always appointed by the guardianship judge (art. 346 of the Italian Civil Code), who, however, in choosing the person must follow certain criteria; that is, if it concerns an unemancipated minor, he must first of all 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 guardian must be made by preference among the ascendants or among the other relatives or connections of the minor, and after having heard the minor himself, if the latter has reached the age of 16. In any case the choice of guardian must fall upon a person suitable for the office, of irreproachable conduct, who gives assurance of educating and instructing the minor (art. 348). If it concerns appointing the guardian of a person under interdiction, the judge is to prefer, in order of degree, the spouse of full age, unless legally separated, the father, the mother, the eldest child of full age, or the person possibly designated by the surviving parent by will or by public act or by authenticated writing (art. 424). In some cases a welfare institution may also be appointed as guardian (art. 354).
Certain categories of persons are, on the other hand, declared by the law itself incapable of carrying out the office of guardian, such as, for example, undischarged bankrupts who have not been removed from the register of bankrupts; those who have lost parental authority, those excluded from guardianship by written disposition of the father, those excluded from another guardianship, etc. (art. 350).
The office of guardian is in itself obligatory and cannot therefore be refused, except in the cases of exemption provided by law. Among those exempted are cardinals, the presidents of legislative assemblies and ministers (but they may renounce the exemption). Those to be exempted upon request are archbishops and bishops, ministers of worship with the care of souls, members of the armed forces, anyone who has completed sixty-five years of age, etc. (arts. 351-52). The guardian has over the minor powers analogous to those of the parent exercising parental authority (art. 357). But the law establishes greater precautions and more intensive controls.
The law generally regulates the exercise of guardianship with the following guarantees: a) the guardian's oath to exercise the guardianship with fidelity and diligence (art. 349); b) the preparation by the guardian of an inventory of the ward's property (arts. 362-67); c) the furnishing by the guardian of a guarantee proportionate to the nature and extent of the ward's patrimony, unless there is just cause to exempt him from this obligation (art. 381); d) the authorization of the guardianship judge or of the Tribunal so that the guardian may carry out certain acts (arts. 372, 374-376); e) the rendering of accounts by the same guardian annually to the magistrate or to the persons whom the law determines, or, in any case, at the end of the guardianship administration (arts. 385-86).
Given the nature of the relations that exist between guardian and minor or person under interdiction, between guardian and emancipated minor the statute of limitations is suspended and therefore does not run (art. 3941). Among the rights that belong to the guardian with respect to his wards is that of parental authority (v.), which also entails duties of education, supervision, administration, etc.
Notwithstanding the gratuitousness of the office of guardian, the guardianship judge may assign an indemnity, taking into account the patrimony and the difficulties of administration (art. 379).
To the rights of parental authority in the guardian there correspond duties in his ward, which are of respect, obedience, etc. (art. 358). These prescriptions evidently have a content that is above all moral, binding also in conscience, before any intervention of the judge.
II. GUARDIANSHIP IN THE CIC
For the regulation of this institution canon law refers for the most part to the civil laws; it does, however, contain certain provisions that take the curator into consideration, for certain effects, especially procedural ones; moreover, its terminology is somewhat uncertain, using the terms guardian and curator interchangeably.
In relation to paternal authority, the minor, even in the presence of a guardian, is exempt from it in all those cases in which he would be exempt in the presence of his parents (can. 89; cf. cann. 542, 974, 1352, 1648 § 3). He has the domicile of his guardian, but after the age of seven he may have a quasi-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 stand in court through a curator appointed by the judge (curator ad litem: can. 1648 § 2). In the ward's cases the guardian is incapable of giving testimony (can. 1757 § 3), of exercising the office of expert (can. 1795 § 2) and of judge (can. 1613). Under canon law the guardian has the faculty of choosing the church for the funeral or the burial of a ward below the age of puberty (can. 1224, n. 1).
Still on the basis of paternal authority, the guardian can invalidate the religious vows of his wards. These vows can be invalidated even when the votaries, having come out of guardianship, renew them, on the presupposition that the votaries do not intend to bind themselves anew independently of the previous vows.
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Guglielmo Felici