- Posted by Massimo Mellaro
When and why does Italian law demand the presence of a legal guardian?
Italian law establishes that people under eighteen and people prohibited by interdict do not have the possibility to make legal acts on their own, but must be aided by the parent/s holding parental authority or by a legal guardian.
The tutore role is gratuitous and the appointed person cannot renounce her/his role once appointed; the aim of this figure is to grant adequate protection to people under age, orphans or those prohibited by interdict, in order to safeguard their interests.
On the basis of Italian law, one of the parents holding parental authority can ask the Judge to appoint a specific individual as tutore; close family members can be appointed; strangers can also be appointed and in certain specific cases, under particular circumstances established by article 354 of the Italian Civil Code, an organisation can also be appointed.
Before assuming the task, the legal guardian will have to swear an oath before the Judge that she/he will act during her/his task with loyalty and diligence and in the exclusive interest of the represented person.
In cases of siblings, usually one legal guardian is appointed for all the minors. In the event that the siblings have conflicting interests, Italian law establishes that the Judge must appoint a special administrator. Children of twelve can be interviewed by the Judge, in charge of appointing a legal guardian, to evaluate their point of view. In some specific cases, the Judge may interview the minor even if she/he is younger than twelve years old, providing she/he is deemed capable of discernment.
The legal guardian takes care of the minor, her/his financial and material interests, represents her/him in all legal acts and administers the minor’s assets.
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