Guardianship is the institution for the care and protection of minors who are not under the parental authority of their parents. Following Law 8/2021 of 2 June, reforming the civil and procedural legislation on support for persons with a disability, guardianship ceased to apply to adults: when an adult needs support to exercise their legal capacity, the legal system provides for support measures such as curatorship, de facto guardianship, the judicial defender or preventive powers of attorney.
Its aim is to protect the personal and financial interests of the minor under guardianship, safeguarding their rights, and it can only be ordered by a judge in court proceedings.
At BBMabogados we are experts in this field and we have our trusted court representatives to carry out the best judicial representation, both in the guardianship of minors and in the establishment of support measures for adults.
Who is subject to guardianship?
The first thing to point out is that, in principle, every minor is subject to the parental authority of their parents, which ends with the age of majority or in special cases such as emancipation.
Apart from the above, which represents the normal situation and the majority of cases, unemancipated minors can be placed under guardianship, provided that they are not subject to the parental authority of their parents: this is the typical case of minors in a situation of neglect or whose parents have died or have been deprived of parental authority.
When a child with a disability reaches the age of majority and parental authority ends, their protection does not continue through guardianship, but through the support measures provided for adults —principally curatorship, but also de facto guardianship or preventive powers of attorney—, adapted to their specific needs.
Support measures for adults
From the moment we are born we hold rights and obligations that guarantee our independence and freedom. Law 8/2021 starts from the premise that every adult retains their legal capacity and establishes a model of support for the exercise of that capacity, not one of substituting their will.
When an adult with a disability needs support to make or express their decisions, the judge can establish measures proportionate to their needs, always respecting their will, wishes and preferences. The main one is curatorship, which as a general rule is assistive and only exceptionally, when it is essential, has a representative scope.
Alongside it there are de facto guardianship, which is often enough without the need for a judicial appointment; the judicial defender for specific matters; and preventive powers of attorney and self-curatorship, with which anyone can plan, while retaining full capacity, who will support them and how in the future should they come to need it. You can find more information on our pages on curatorship and incapacity.
Types of guardianship of minors in Santander
Within the guardianship of minors, two situations can basically be distinguished:
Family guardianship
This is the guardianship exercised by members of the minor’s family by court decision. In this form of guardianship the judge and the public authorities with supervisory functions also take part, always with a view to safeguarding and ensuring the rights and wellbeing of the minor under guardianship.
Guardianship by a public authority
When the minor is in a situation of neglect, guardianship can be taken on by the public authority competent in the protection of minors. In this case, the aim will be to look after the integrity, the rights and the assets of the minor under guardianship.
Guardianship and curatorship. How do they differ?
Following Law 8/2021 they are not two degrees of the same thing, but two figures with different recipients. Guardianship protects minors not subject to parental authority. Curatorship is the main support measure for adults who need it.
As a general rule curatorship is assistive: the curator accompanies or assists the person in the specific acts set by the judge, without substituting their will. Only exceptionally, when it is essential, does curatorship have a representative scope. It is the judge who determines that scope, in a way proportionate to each case.
Who can be a guardian or provide the support in Santander
In the guardianship of minors, the judge appoints a guardian having regard to the best interests of the minor; the parents can designate a guardian in a will or public document, and when the minor is in a situation of neglect the guardianship can fall to the relevant public authority.
When it comes to supporting an adult, the law gives priority to the will and preferences of the person concerned, who can designate in advance —through preventive powers of attorney or self-curatorship— the person they wish to support them. Failing that, the judge assesses the family and emotional environment to appoint the most suitable person.
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