The two terms are related to the custody of one person by another, however, there are notable differences between the two terms. Conservatorship vs Guardianship
What is Guardianship? Conservatorship vs Guardianship
It is a legal institution whose purpose is to protect a person and their relatives, or only one of them, who, not being under parental authority, is unable to govern himself because he is a minor or incapacitated in some way. way. Conservatorship vs Guardianship
It depends on the legislation of each country, but it can go together with: Conservatorship vs Guardianship
- Family Council: It is made up of the direct ascendants of the minor. Some functions are performed by a judicial defender or judge.
- Judicial defender: Is one who, being independent of the person who acts as guardian, monitors the obligations of the latter over the ward.
- Guardianship shared by two or more guardians: In this case it may or may not be allowed by some legislations. In this case, one person acts as guardian of a person and another guardian of the estate. Conservatorship vs Guardianship
A guardian is a legal representative of the minor or incapacitated person and exercises the functions of guardianship. The legal capacity offered to a guardian is granted to all those of legal age.
What is Conservatorships?
It is a system of protection and custody of the following people:
- The emancipated whose parents were disabled or have died, so they were prevented from exercising the assistance established by law.
- Those who obtained the benefit of coming of age.
- They were declared prodigals.
- People who are placed under this form of protection by sentences of incapacitation.
Conservatorship vs Guardianship in tabular form Conservatorship vs Guardianship
|Definition||It is a legal burden that assigns to someone the responsibility to watch over, represent in civil life and administer the property of a minor.||It is the role of the curator, who administers the assets of a permanently or temporarily incapacitated person.|
|Responsibilities||Ensuring protection, well-being, education, health, among other tasks, to the children and adolescents under their guardianship.||Administer the assets and wills of an adult or elderly person, who is currently or permanently incapacitated. There are also habitual drunks, drug addicts and prodigals, who have no control over their spending.|
|Assignment||Attributed in the event of the death of the parents, who may leave a guardian signed in a will or, if not done, passed on to the child’s closest relative.||Attributed in cases where the person cannot express their wishes as a result of illness or accident.|
How many types of conservatorships are there?
- General: It extends to the person as well as the property of the pupil. They submit to it: minor adults, prodigals, insane, deaf and dumb who cannot make themselves understood in writing. Conservatorship vs Guardianship
- Assets: They are curators of assets, which are given to the assets of the absentee, the lying inheritance, and the eventual rights of the unborn.
- Attachments: It is given to people who are under the authority of a father or mother, or under guardianship or general conservatorship, so that a separate administration is exercised.
- Special: Granted for a particular business, and is given in the following cases: to which the minor woman needs to request the separation of assets, which is designated to the minor, who lacks a legal representative, to accept the adoption and the one given to the woman under parental authority or guardianship of the widowed father or mother who wish to remarry. Conservatorship vs Guardianship
What is the difference between guardianship and conservatorship in points? Conservatorship vs Guardianship
- Guardianship is always given to prepubescents based on their age, which is why there is only one type of guardianship.
- On the other hand, curatorships are given to others who are incapable. This means that there are several kinds of conservatorships, since there are different cases of incapacity.
- Those who are subject to guardianship will always be those that the law describes as absolutely incapable, that is, they cannot carry out any act in the eyes of civil law, since if they did, it would suffer from absolute nullity, for which it will have no value. Conservatorship vs Guardianship
- Those who are subject to guardianship can be both absolute and relative incapable, in the latter case these are those who can perform some acts but authorized.
- Those who are subject to guardianship must always act represented by their guardian due to their absolute incapacity, since the acts they carry out by themselves are not valid.
- While in curatorships, adult minors can act represented or authorized by their curator. This means that they perform acts on their own, but with the permission of another, which gives validity to their acts.
- The guardian has much broader powers than the curator, since if the latter is the curator of a relative incapacitated person, he will have fewer powers, this is because there are some acts that he can perform by himself and that do not require authorization from his curator.
- The tutor cannot be proposed by the prepubescent, since here we are talking about a minor who does not have the necessary capacity for understanding.
- In the case of the curator, the minor can propose a person as his curator, because we are in the case of an adult minor, who under the scope of the law does have the capacity for discernment. Conservatorship vs Guardianship
So the conclusions are: Conservatorship vs Guardianship
- Guardianship supposes total incapacitation and a guardian takes care of everything.
- Curatela supposes partial incapacitation and a curator will help the incapacitated in those tasks that the curator needs.
- Regulation . Both figures have the same process and the same tests and the judge determines based on the tests performed. Conservatorship vs Guardianship
Conservatorship vs Guardianship: FAQs
How is guardianship defined?
The capacity to act is defined as the power to display legal effects against third parties.
All persons of legal age have full capacity to act, unless this is limited through a (judicial) process of modification of legal capacity. In other words, both minors and those legally incapacitated have certain limitations in legal traffic. And to protect their interests there are the figures of guardianship, conservatorship and judicial defender.
What is the purpose of conservatorship?
Curatorship is an institution for the protection of the patrimony of minors or those legally incapacitated . It can also apply to the declared prodigals. Conservatorship vs Guardianship
A person subject to conservatorship will require the participation of his curator to carry out certain acts. Thus, while the guardian replaces the person under guardianship in certain legal transactions, the curator limits himself to complementing the capacity to act of the person under guardianship, authorizing him to carry out certain acts.
How can guardianship be established?
The conservatorship is instituted by means of a judicial resolution. Therefore, it is the judicial authority that must determine for which acts the person subject to conservatorship will need authorization and who will be their curator.
The function of the judicial authority does not end here since, as in the case of guardianship, the Judge will supervise the functions of the curator. And it is that such functions must be exercised for the benefit of the person whose capacity is complemented.
It must be taken into account that the institution of curatorship is produced ex officio , although the close relatives of the partially disabled or minor are obliged to promote the procedure for the appointment of curator. In addition, any person could inform the Judge or the Public Prosecutor of the existence of another person who needs to be placed under guardianship.
Who is subject to conservatorship?
Those who can submit to conservatorship, will be the following subjects:
- Emancipated minors who lack parents or whose parents have been deprived of parental authority . Also those who received the benefit of older age.
- People declared prodigal.
- Partially incapacitated by judicial sentence . In the event that the incapacitation was total, these people should submit to guardianship. Therefore, the sentence will determine the acts for which the partially incapacitated person requires the authorization of a curator. Conservatorship vs Guardianship
What are the functions of the curator?
The curator is limited to complementing the capacity to act of the person subject to curatorship. In particular, he must intervene whenever he intends to: Conservatorship vs Guardianship
- Borrow money.
- Encumber or dispose of real estate and commercial or industrial establishments, as well as objects of extraordinary value.
- In the case of the prodigal, carry out any of the acts that the sentence determines must be accompanied by the authorization of the curator.
- It will be noted that, unlike the tutor, the curator cannot take the initiative for any of these actions. He will simply authorize the person under guardianship every time he wants to perform these acts.
In case of not having the authorization of the curator, such acts will be voidable by the curator or the person subject to curatorship.
What limits does the figure of the curator have? Conservatorship vs Guardianship
As a precaution, certain prohibitions are established , similar to those to which a guardian is subject. Thus, the curator cannot:
- Receive donations free of charge from the person subject to curatorship.
- Acquire goods or sell them to the person subject to conservatorship.
- Nor can it intervene in those economic legal transactions in which there is a conflict of interest.
How can the conservatorship be extinguished?
In order for the conservatorship to be extinguished, the cause that motivated it must cease . In particular:
- Regarding emancipated minors and those who obtained the benefit of older age, the conservatorship will expire when they turn 18 years old.
- And regarding the prodigals or those partially incapacitated by judicial sentence, it will be extinguished in case of removal of effects of the sentence. Conservatorship vs Guardianship