Guardianship and guardianship are two institutes that seek to manage the wishes of minors or incapable people, permanently or temporarily. Despite some similarities, they are different terms with different rules.
Guardianship, declared by a judge, serves for a child or adolescent to have someone to protect them and represent them in civil society when necessary. The one who receives guardianship is called a guardian.
The curatorship, on the other hand, serves for someone to be responsible for an adult or elderly person who is unable to exercise their will. Guardianship must also be assigned by a judge and whoever receives guardianship is known as a trustee.
Habitual drunks, drug addicts and prodigals who are not able to control their spending may also need to be under guardianship.
Understand the differences:
| guardianship | guardianship | |
|---|---|---|
| Definition | It is a legal charge that assigns someone the responsibility of looking after, representing in civil life and administering the assets of a minor. | It is the function of the curator, who manages the assets of a permanently or temporarily incapacitated person. |
| Responsibilities | Ensure the protection, well-being, education, health, among other tasks of the children and adolescents under its guardianship. | Manage the assets and wishes of an adult or elderly person who is currently or permanently incapable. Habitual drunks, drug addicts and prodigals who have no control over their spending are also included. |
| Assignment | Attributed in the event of the death of the parents, who may leave a guardian signed in a will or, if this has not been done, passed on to the minor's closest relative. | Assigned in cases where the person cannot express their wishes as a result of illness or accident. |
What is guardianship?
Guardianship is assigned by a judge to someone who is capable of protecting and managing the life of a child or adolescent.
Generally, it is used in cases of orphans or minors whose parents do not have the necessary capacity to manage the life of the child or children.
For guardianship to be granted, it is necessary that the potential guardian has granted permission and agrees to become responsible for the minor. Furthermore, the assignment can be granted in three ways.
Types of granting guardianship
There are three ways to grant guardianship to someone, provided the individual to become guardian has agreed to assume the position. Are they:
testamentary: In this form of granting guardianship, parents must leave in a will, or other document of equal legal value, the will to pass on responsibilities to the minor and indicate who would be the guardian.
Cool: If the parents do not leave the appointment of a guardian in the will, the court will assign guardianship to one of the closest relatives. Preference is given to ascendants (grandparents, for example), but in case of impossibility, guardianship can be assigned to collateral relatives, going from the closest to the most distant.
- dative: In situations where the parents did not leave a testamentary guardian and there is no relative able to exercise guardianship, the judge may select a person who resides with the minor.
It is worth mentioning that, in the Cool, the judge is the one who decides who would be more able to assume guardianship and become the guardian of the minor.
According to article 1.736 of the Civil Code, the following are exempt from guardianship:
- married women
- Over 60 years old
- Those who have more than three children under their authority
- Disabled by illness
- Those who live far from the place where guardianship is to be exercised
- Those who already exercise guardianship or guardianship
- military in service
And then, what is the guard?
Guardianship is also distinguished from the so-called “guard”. In Brazil, custody refers to responsibilities over a minor.
Custody can be unilateral, in which one of the parents or guardians is responsible for the well-being of the minor.
Guardians must also shoulder the fulfillment of duties. Among them: keeping the child in school, taking care of his health, protecting and representing him in various aspects of civil life until he is of legal age.
Shared custody is when two individuals (usually the father and mother, adoptive or not), share responsibilities over the minor. They must ensure your safety, well-being and education.
What is guardianship?
The guardianship is an institute assigned by a judge. Thus, the so-called curator manages the goods and wishes of an adult or elderly individual who is unable to exercise his will. Either permanently or temporarily.
Habitual drunkards are also subject to guardianship, that is, people addicted to alcoholic beverages, becoming incapable of managing their lives effectively. Drug addicts may also need guardianship for the same reasons.
Prodigals, individuals who do not control their spending and may compromise their assets, may also need a curator. This is because they can be considered mentally ill.
Who can be appointed curator?
In general, if the incompetent person is married, his or her spouse will be appointed as guardian. However, if there is no spouse, the role of trustee passes to one of his descendants. From the closest to the farthest.
However, if the situation is that of an incapable person without a spouse or without descendants, it is up to the judge to decide who will exercise guardianship over the individual.
In cases of people with disabilities, according to article 1775-A of the Civil Code, the judge may choose to appoint more than one curator. It would then be a shared guardianship between those responsible for the wishes of the incapable person.
curator's duties
According to article 1777 of the Civil Code, the curator is responsible for the well-being and family and social life of the incapable individual. This is in addition to managing your assets.
The curator's role also involves protecting the right to coexistence, preventing the incapable person from living in seclusion.
Guardianship x Guardianship
Despite the similarities in obligations, the tutor and curator have the objective of caring for people who are at different times in life.
The guardian will be responsible for minors, children and adolescents, until they are of legal age and can exercise their will without restrictions.
The curator has the responsibility of looking after those adults and seniors who are incapable of managing their assets or expressing their wishes. In addition to alcoholics, drug addicts and so-called prodigals.
Therefore, it will always be up to the judge to decide who will exercise guardianship or guardianship. This is because they are two autonomous institutes of law with their own characteristics.
See also the difference between:
- Natural law and positive law
- Plaintiff, respondent, defendant and plaintiff
- prescription and decadence
- Negligence, Imprudence and Malpractice
