Judicial Support (Guardianship) of Adults
An adult natural person is placed under judicial support (guardianship) when their mental and/or physical condition permanently or temporarily prevents or limits, wholly or partially, their actual ability to manage their own affairs and to safeguard their legal interests.
Persons suffering from mental or intellectual disorders or behavioral abnormalities, as well as persons with physical disabilities, and individuals who, due to prodigality, drug addiction, or alcoholism, expose themselves, their ascendants, descendants, or spouse to the risk of deprivation, constitute typical cases of persons requiring judicial support.
By court decision, a person falling within the above categories is placed under judicial support. The supported person, pursuant to such decision, is rendered wholly or partially legally incapacitated or may require the consent of a specific person, namely the judicial supporter (guardian), for the valid conclusion of all or certain legal acts concerning them.
Judicial support is distinguished into deprivational (full) and auxiliary (partial). In deprivational judicial support, the supported person is represented by the judicial supporter both for the performance of legal acts and for conducting legal proceedings, in respect of which they have been declared incapable by court decision. In contrast, in auxiliary judicial support, the supported person must obtain the prior written consent of the judicial supporter for the performance of legal acts and for participation in legal proceedings.
The persons legally entitled to initiate the procedure for placing someone under judicial support are the spouse, children, and parents of the person concerned. The person concerned may also file the application themselves. The Public Prosecutor of the Court of First Instance is obliged to initiate the procedure if informed by relatives or others about the condition of the person, provided that the accuracy of such information is verified. Additionally, during the last year of minority, a guardian may file the application for a minor only if the minor suffers from a mental or intellectual disorder. Only in cases involving such disorders may the court act ex officio.
The judicial supporter is, as a rule, a natural person, performing a personal and non-mandatory function. They are entrusted either with the legal representation of the supported person (in cases of deprivational judicial support) or with providing consent for certain acts (in cases of auxiliary judicial support). The judicial supporter is appointed for the entire duration of the judicial support, and their term begins upon the finality of the appointing decision (not its publication) and ends upon termination of the judicial support by any means.
In certain cases, the court may appoint two judicial supporters, assigning one the administration of the estate and the other the care of the person. The judicial supporter must perform their duties in accordance with the law and in the best interests of the supported person. Any breach of these duties may give rise, among other consequences, to liability for compensation towards the supported person or their heirs.
The court appoints as judicial supporter the person proposed by the individual concerned, provided that the latter has reached the age of sixteen (16) and that the proposed person is deemed suitable and legally eligible. Even if the proposed person is not suitable, the court freely selects an appropriate person but must consider the expressed will of the supported person (including any wish to exclude a specific individual), their family relationships, and any potential conflict of interest.
If the court cannot find a suitable individual, judicial support is assigned to an association or institution established for this purpose and equipped with the appropriate staff and infrastructure; otherwise, it is assigned to the competent social service.
A judicial supporter cannot be appointed if they:
lack full legal capacity,
are themselves under judicial support,
have a dependency relationship or close connection with a mental health unit where the supported person is hospitalized or resides.
Legal remedies against the decision placing a person under judicial support, appointing a judicial supporter, or refusing such placement may be exercised by all persons who participated in the proceedings. However, intervention or third-party opposition may only be exercised by those legally entitled to request the placement under judicial support.
Judicial support automatically terminates upon the death of the supported person or their declaration as missing (presumed dead), or by court decision lifting the judicial support, whereby the person regains their legal capacity and status as before. After termination, the judicial supporter is obliged to return the property to the supported person and render an account.
The competent court is the Single-Member Court of First Instance of the place of the habitual residence of the person concerned, which adjudicates under the procedure of voluntary jurisdiction.