Definition and cases for guardianship
It is the authority conferred to someone to take care of a person (the ward) and their property in the absence of their parents. The guardian has duties which are always exercised for the benefit of the ward. Who can be subject to guardianship?
Non-emancipated underage minors who are not under parental authority
The incompetent pursuant to court ruling
Those subject to the extended parental authority
Who files for guardianship?
Pursuant to the Spanish Civil Code provisions, guardianship begins with an application filed by:
The next of kin.
The public prosecutor or relevant judge. It will be requested by the former and arranged by the latter, even ex officio.
Once the judge is aware of the situation, he will summon the next of kin, relevant people, and ultimately, should they had judgment and be over 12, the child in order to approve guardianship.
Who can be a guardian?
Anyone in the full exercise of their civil rights and who do not present any cause of inability may be a guardian, i.e., those of full legal age who are competent. Entities not having lucrative purpose and whose purposes include the protection of minors and incompetentpeople may also be guardians.
Duties of the guardian
The guardian needs to prepare the child´s inventory within sixty days since the approval of guardianship. This inventory is legally prepared with the intervention of the public prosecutor’s Office.
The relationship between the guardian and the ward are the same than those between parents and their children. As the guardian has an obligation to watch the ward, and namely, to feed, raise and educate him, to promote his recovery and integration into society and inform the judge annually on his situation.
Can the guardian perform any actions on behalf of their protected?
The guardian is the general agent of the ward, for all acts except for those which the ward may perform himself according to the law or pursuant to the ruling of inability.
However, the guardian needs courtauthorisation for certain acts and failure to do so will render the act null and void. Some of these acts are:
to place the ward in an institution, dispose of or encumber their real property, commercial or industrial premises, accept any inheritance without prior assessment, or to disclaim it, lease property for more than six years, loan and borrow moneys, dispose of assets or rights of the ward, etc.