Appointment of Judicial Guardian – Criteria, Exclusions and Supervision

29 Apr Appointment of Judicial Guardian – Criteria, Exclusions and Supervision

The person undertaking the duties of a judicial guardian plays a crucial role in safeguarding the interests and dignity of the protected individual. The selection of a suitable person is critical, as the guardian assumes responsibility for making decisions that affect both the personal life and financial situation of the protected person.

According to Article 1669 of the Civil Code, the appointment of a judicial guardian is made with the aim of ensuring the best interests of the person under guardianship and, to the extent possible, maintaining their personal autonomy.

The institutional importance of the role, its social impact, and the need to prevent conflicts of interest make the provisions of this article a cornerstone for the proper implementation of the institution of judicial guardianship, as regulated by the Civil Code and the relevant case law.

Selection of Guardian

Primarily, the court appoints as guardian the person proposed by the person concerned (provided they are at least 16 years old and the proposed person is suitable and legally acceptable). This option institutionally guarantees the personal autonomy of the protected person, giving them the opportunity to propose a trusted individual—such as a child, sibling, or other close relative—to assume the role of their future guardian.

In the absence of a proposed person, or if the proposed individual is deemed unsuitable by the court, the choice is freely made by the judge based on the following criteria: • Any express will of the protected person to exclude a specific individual.
• The nature and quality of family or social relationships between the person and the candidates (especially with parents, children, spouse).
• Prevention of any potential conflict of interest with any candidate (e.g., existence of debts owed to the protected person, or involvement in inheritance interests).

The judge evaluates the overall family and social environment, aiming to select a person who demonstrably has ties of care, trust, and affection towards the protected person. Conversely, individuals with whom the person has expressed dislike, is involved in legal or personal disputes, or is objectively unsuitable due to a conflict of interest, are explicitly excluded.

This provision is of particular importance within the context of judicial guardianship, as it balances the need to protect the individual with the preservation of respect for their personality and preferences.

Excluded Persons

Article 1670 of the Civil Code sets out clear and explicit negative conditions which exclude specific persons from being appointed as judicial guardians. According to the legislative framework, the following cannot be appointed as judicial guardians:

1. Anyone who lacks full legal capacity. That is, individuals already under judicial guardianship or minors cannot assume guardian duties, as they lack the necessary legal competence.
2. An adult for whom a temporary judicial guardian has already been appointed under Article 1672 of the Civil Code.
3. Any person with a relationship of dependence or other close connection to the mental health institution in which the protected person resides or is hospitalized. This includes, for example, employees, administrative personnel, or individuals financially or administratively linked to the institution, aiming to prevent any potential risk of conflict of interest.

In particular, if a person falling within the first category (i.e., lacking legal capacity) is appointed, such appointment is automatically void and produces no legal effect. In the other two cases (i.e., temporary guardian or person linked to a mental health unit), the provisions of Article 1596 of the Civil Code, regarding the removal of a guardian for a minor due to conflict of interest or disqualification, are applied by analogy.

This provision enhances the integrity and credibility of the institution of judicial guardianship, ensuring that the person assuming the role of guardian will act with objectivity, independence, and with the sole aim of serving the interests of the protected individual.

Absence of Suitable Natural Person

In rare cases, no relative or other person may be available or suitable to assume the duties of judicial guardian. In such cases, under Article 1671 of the Civil Code, the following solution is provided: “judicial guardianship is entrusted to an association or foundation specifically established for this purpose, with suitable staff and infrastructure, or otherwise to the competent social services authority.”

This provision acts as a last-resort measure of protection in cases where no suitable natural person is available—for example, in the case of an elderly individual without family, relatives, or a supportive social environment. In such instances, judicial guardianship may be entrusted to an elderly protection association, foundation, or the social service of the municipality or regional authority.

This provision is connected to Article 1635 of the Civil Code, which applies by analogy to the guardianship of minors when no suitable natural person is available. In practice, assignment to a legal entity or public authority occurs only when it is clearly and demonstrably established that no suitable or available relative or close person exists for the appointment.

This provision enhances the functionality and flexibility of the institution of judicial guardianship, ensuring that even persons in complete social isolation will not be left without the necessary legal protection.

Duties and Responsibilities of the Judicial Guardian

Once appointed (and the decision becomes final), the judicial guardian undertakes duties akin to those of a guardian of a minor. Specifically, they are obligated to care for the personal and financial affairs of the protected individual, always acting with their best interests as the primary concern.

The law provides that, in the context of personal care, the guardian must ensure that the protected individual is able, to the extent possible, to form personal relationships, provided their condition allows it. This provision aims to safeguard the person’s personality and social integration, ensuring that there is no social isolation or excessive interference in their personal life. For example, the protected person should be able to maintain friendships, communicate with whomever they choose, and make personal decisions (such as concerning health or daily life), as far as circumstances permit.

Additionally, the court may, under Article 1680 of the Civil Code, assign to the judicial guardian the care of the person either entirely or partially. This means that, apart from property management responsibilities, the guardian may also be tasked with the care of the individual—such as making decisions on medical treatment, determining their place of residence, and generally ensuring their daily living needs. All these actions are subject to respect for the personality, needs, and human dignity of the protected individual.

Supervisory Council

To prevent abuse, the law provides for the establishment of a special supervisory body for the judicial guardian. According to Article 1682 of the Civil Code, “in every case of restrictive judicial guardianship, the provisions for minor guardianship apply accordingly. Supervision is exercised by a council of three to five members, appointed by the same decision that appoints the judicial guardian.”

When guardianship is restrictive in nature—that is, when the protected person does not have the right to perform legal acts on their own—the court forms a Supervisory Council consisting of three to five members. These are usually close relatives or other individuals of integrity and trust. The council has duties similar to those of the supervisory council in the guardianship of minors. In particular:

• It approves the guardian’s accounts.
• It monitors the management of the protected person’s affairs.
• It may notify the court of problematic situations, omissions, or abuses.

Furthermore, under Article 1686 of the Civil Code, the judicial guardian is obliged to inform the court of any change regarding the condition of the protected person that could justify the modification or termination of the guardianship. For example, if the protected person’s health shows significant improvement, the guardian must immediately inform the court so that the guardianship status can be reviewed.

At the same time, the judicial guardian acts as manager of the protected person’s property, subject to the rules that apply to the guardian of a minor. This includes:

• Prudent administration of property.
• Safe placement of funds.
• Requirement of court approval for certain acts.

According to Article 1678 of the Civil Code, actions that a guardian of a minor may not carry out without prior court approval may not be carried out either by or on behalf of the protected person under restrictive guardianship without representation or under supportive guardianship without consent. For example, just as a minor cannot sell real estate without court approval, an adult under full prohibition or lacking consent capability cannot sell real estate or perform other significant acts of property disposal.

Unpaid Nature of the Role of Judicial Guardia

The law regards the role of judicial guardian as an office of unpaid and selfless service. By default, this duty is undertaken by individuals with a moral and emotional connection to the protected person, such as relatives or close members of their social circle.

According to existing legislation, no salary or remuneration is provided for the performance of guardian duties. An exception exists in the possibility of reimbursement of expenses, when it is demonstrated that the guardian incurred costs in serving their role.

However, in cases where the management of the protected person’s affairs is particularly demanding, complex, or time-consuming, the competent supervisory council or the court itself may approve the payment of reasonable compensation to the guardian. This possibility is also provided by analogy in the provisions for the guardianship of minors, where it is accepted that in exceptional circumstances, financial compensation for the guardian may be recognized.

This provision seeks to balance the requirement for selflessness with the realistic recognition of the burden involved in carrying out guardianship in cases of heightened demands.

Conclusion

The institution of judicial guardianship aims to protect individuals who, due to mental or intellectual disorder or other serious reasons, are unable to care for themselves or manage their affairs. The legislation provides specific safeguards, filters, and oversight mechanisms for the selection of a suitable person as judicial guardian, while the care of the person and property of the protected individual is combined with obligations of transparency, accountability, and respect for personality.

For each case of judicial guardianship, a specialized legal approach and evaluation of the protected person’s real circumstances is required. If you are facing judicial guardianship proceedings—either as a prospective guardian or as a relative or interested third party—you may contact our law firm for personalized legal support and guidance at every stage of the process.