Curatorship, Differences With Respect To Legal Guardian

Among the ways to represent and protect the rights of children, there are several legal figures. Although the legal guardian is the most widespread, there is also the figure of guardianship. What does it consist of?

When the minor is in a situation in which he needs certain legal representation, there are figures that offer that protection. Among them is guardianship and curatorship. In what aspects do they differ and in what types of situations do they apply?

In practice, the main difference between guardianship and guardianship is that the minor or person under guardianship is totally incapable, and in guardianship the protégé is capable, but needs a complement of capacity. 

In addition to minors in cases where their parents cannot represent them, there are other examples in which the guardianship and protection of person and property is needed :

• When the person has senile dementia and cannot regulate his life and daily actions adequately. In these cases the guardianship proceeds.
• When suffering from a mental illness, usually paranoid schizophrenia, which makes it difficult for the protected person to control their economic acts. In these cases, a capacity supplement is required and conservatorship is applied.
  

Guardianship can be requested mainly by relatives of the affected person, the Public Prosecutor’s Office and the competent judge. However, in the presence of a susceptible subject, any citizen could request it. In addition, article 222 of the Spanish Civil Code defines the people who are subject to guardianship:

• Non-emancipated minors who are not under parental authority.
• Disabled, when established by sentence.
• Those subject to extended parental authority, when it ceases, unless the guardianship proceeds.
• Minors in distress.

Defining conservatorship

For its part, conservatorship is a legal institution under which a conservator is empowered to complement the capacity of a third party. This will be done in all those acts where the protected requires it. In this case, conservatorship cannot properly be said to involve care.

In any case, the curator serves to complement the affected party in legal and commercial acts. This is supposed to happen because the beneficiary of conservatorship is not able to do it alone. The conservator is appointed by a judge under sentence. Article 286 of the Civil Code tells us who are the persons subject to guardianship:

• Emancipated persons whose parents are deceased or are unable to exercise parental responsibility.
• Those who obtain the benefit of being older.
• The declared prodigals.
• People with a sentence of incapacitation or in cases whose modification warrants this type of assistance.

Differences between conservatorship and guardianship

As explained, guardianship implies a custodial situation that comes from a total disability. The person under guardianship is unable to take care of himself and his estate. For example, a minor child who lost his parents or a senile person requires a legal guardian.

As the person does not have any capacity to look after his affairs, he is assigned a representation. In contrast, conservatorship is complementary assistance to a person who does have capacities, but not enough. Therefore, the representation is intermittent and takes place only when the represented needs it.

For example, a person with a certain disease may have some abilities, but not enough. It is in this type of case where the figure of the guardianship is usually the most convenient. The guardian, on the other hand, assists fully, although there are acts in which he cannot decide without judicial authorization.

How do you determine which of the two figures is necessary?

So far, it is understood that the breadth of the guardianship is what differentiates both legal institutions. There are several sentences in which the contrast between a curator and a tutor is made clear. For example, according to STS 1.07.2014, guardianship is for total disabilities and guardianship for partial ones.

Many people may wonder how it is determined which of both figures is necessary for each person. There are cases in which the law clearly indicates this, as in the case of minors without representation of their parents. But when it comes to mental disabilities, the issue is often more complex.

What proceeds in the determination of disability is usually a forensic medical test. The history of illnesses of a person subject to protection is usually of great use towards sentencing. During the judicial process, the judge will evaluate this type of evidence to determine the appropriate figure.