Legal guardian: rights and obligations

February 11, 2020 Admin-MBDPLawFirm 0 Comments

There are people who, in situations of special vulnerability, need to be subject to the figure of protection provided by legal protection. In general terms, these are usually minors who are not emancipated and who have lost their ancestors and persons legally incapacitated for not being in full possession of their physical or mental faculties. Here we will focus on this topic to better understand what it means and the obligations that come with it.

What does legal guardianship mean?

Guardianship is an institution belonging to the legal field whose purpose is to protect and keep a person and / or their property. This must be done by a subject who will be judicially appointed as legal guardian and will be executed on a person close to him who does not have the capacity to govern himself, having been declared incapable by judicial sentence or on minors who are not emancipated.

Who can be another person’s legal guardians?

The legal guardian of an incapacitated or an emancipated minor must be appointed by a judge in all cases. To see who can play this role, we must resort to the provisions of article 234 of the Civil Code. It specifies that they have the possibility of assuming this responsibility:

  • The person who has been designated by the person to guardianship regardless of whether there is a relationship or not.
  • The parents of the ward.
  • The spouse residing with the person to be protected.
  • People who have been designated in wills and other types of last will provisions.
  • Brothers, ancestors or descendants designated by the judge by judicial decision.

The order described is also the one established by the Civil Code and to which priority must be given. However, whenever there are certain circumstances that make it necessary or advisable, the judge may alter it and grant guardianship to whomever he deems appropriate. That is to say, it may be legally for the disabled spouse to be a guardian, but the judge may conclude that he is not the most appropriate person and grant guardianship to a brother.

For their part, the autonomous communities that make up our country can establish different orders of preference when appointing the legal guardian of a disabled person. Therefore, we recommend that you take a look at the civil legislation of the place where you reside to make sure of it fully.

What are the disabled legal guardian obligations?

The first of the incapacitated legal guardian obligations, and probably the most important, is to provide maintenance to the person who is under your guardianship. But, in addition, it also has to assume the following functions:

  • Maintain a relationship of respect and consideration with the ward.
  • Inform the judge of changes in the state of health, in the personal, family and sentimental situation, in the place of residence and in the ward’s economy.
  • If you are an emancipated minor, the guardian must provide you with an age-appropriate education.
  • In being able to manage your assets, you must also take responsibility for possible damage caused by your own actions.
  • Every year, you must file a report in court that reflects the financial situation of the ward.
  • In addition, from the moment you assume the position of guardian and within a maximum period of two months, you must deliver an inventory of the assets of the person under guardianship in the court, reflecting the debts, credits, charges and assets that conform.
  • At the end of the guardianship period, either due to the minor’s coming of age or due to the death or recovery of the disabled person, the guardian must file a report in court called a final accountability. It has a term of 3 months from the cessation or the end of the guardianship.

What can’t a legal guardian do without judicial authorization?

The Civil Code also specifies that the judicial organs have the obligation to protect you from the actions of your guardian. For this reason, it requires a prior judicial authorization that, in any case, will give priority to the interests of the ward when carrying out any of these acts:

  • Sell, donate or transfer the property of any real or commercial property or that has to do with industrial or intellectual property rights.
  • Give up inheritances, donations or legacies.
  • Sell, donate or assign real rights.
  • Give up credits.
  • Grant guarantee rights (bonds, guarantees, etc.) on third-party obligations.
  • Sign rental contracts on your properties for a period of more than 15 years.
  • Accept or give loans or credits.
  • Cancel accounts on digital portals.
  • Assent, compromise, withdraw or renounce claims that have to do with your property or rights.
  • Incorporate, spin off, merge or dissolve companies.
  • Assume the status of partner in a limited liability company.

Give up being a legal guardian, is it possible?

In all cases, a judge, through a court ruling, is the subject who can determine who assumes the position of guardian over a disabled person or an emancipated minor. In principle, once this obligation is granted, it cannot be waived by pure will of the designated person. However, there are a number of causes that allow the resignation to be a legal guardian. We can specify the following:

  • Too high age of the designated person.
  • Financial or personal conflicts with the subject to be protected.
  • Working conditions that make it difficult for the tutor to carry out his position with full guarantees for the ward.
  • Previous or acquired physical or mental disability that disables the tutor from exercising his functions.

Disability guardianship resignation, whenever any of these reasons are alleged, can be carried out during the guardianship determination process or when it has already been granted. Of course, in the latter case, the judge must restart the process and find another valid subject willing to carry it out. This process is called, within the judicial sphere, removal of guardianship. Until the determination of a new guardian, the previous one must continue carrying out his obligations. When this happens, you must submit the final rendering of accounts referred to above.

But, what happens if the incapacitated guardianship resignation occurs on the part of a relative and there is no other who can exercise it? In that case in which there is no one from the family environment that can assume the guardianship, the judge will assign a public or private legal entity that responsibility. The only requirement is that it is not for profit and that it is able to assume the obligations of guardianship and to protect the interests of the ward properly.

Conclusions on legal guardianship

In short, the guardianship of disabled people or non-emancipated minors is a legal figure that seeks to protect the assets and rights of those people who cannot do it themselves. This is why it is so important and why it is so protected within our Civil Code. We hope we have been helpful and have clarified your doubts.

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