Placing an individual under guardianship is a special judicial procedure designed to protect persons who, due to illness or cognitive impairment, are unable to manage their personal and property affairs. The process is delicate and requires particular care, as it affects fundamental rights related to the independent management of one’s personal and financial matters.

Who Can File a Petition for Placing an Individual Under Guardianship

The petition may be filed by the spouse, the closest relatives in the direct and collateral line up to the fourth degree, as well as by the prosecutor, whose participation in the proceedings is mandatory. The law also allows other individuals to bring the matter before the court if they can demonstrate a specific legal interest—for example, a person who provides care for the individual or someone directly affected by their condition. This ensures that protection can be initiated whenever necessary.

The Personal Interview – A Key Stage in the Proceedings

The court is required to personally interview the individual whose placement under guardianship is being requested and to form its own direct impressions of their condition. This applies even when the person is in a medical facility—in such cases, the court must visit them there. These observations, together with the forensic psychiatric expert report and the remaining evidence, are decisive in determining whether the medical and legal criteria for guardianship are met.

What Happens After the Guardianship Is Ordered

Once the court establishes that the medical and legal criteria for guardianship are met and issues its decision, the question arises as to how the individual’s protection will be ensured going forward. In cases of full guardianship, a guardianship regime is established, while in cases of limited guardianship, a custodianship regime applies. The authority responsible for guardianship and custodianship is the mayor of the municipality or a person authorized by the mayor. This authority appoints a guardian or custodian and, if necessary, a guardianship council. Until such appointments are made, the law provides protective measures to safeguard the individual’s person and property.

Guardianship and Custodianship by Operation of Law

The law also provides situations in which guardianship or custodianship arises automatically, without the need for administrative procedures. When the individual has a legally competent spouse, that spouse becomes their guardian or custodian by operation of law. If there is no spouse, this role passes to the parents, unless they are unknown, deceased, or deprived of parental rights. This ensures immediate and continuous care in situations where a prompt response is essential.

Removal of a Guardian or Custodian Appointed by Operation of Law

If the interests of the individual placed under guardianship require it, the guardianship authority may remove the guardian or custodian appointed by operation of law. In such cases, the general procedure applies: a guardian or custodian is formally appointed, and substitutes may be designated if necessary. In this way, the law ensures that the protection of the individual remains the overriding priority at all times.

Oversight and Accountability

The guardian or custodian is required to manage the property with the care of a prudent administrator, to deposit monetary funds through a bank, and to submit annual reports. The guardianship council supports and oversees their activities, while the guardianship authority may suspend actions, require the correction of irregularities, and impose sanctions in cases of non‑compliance.

Need Assistance? We Are Here to Help

Proceedings for placing an individual under guardianship are among the most sensitive matters in family law. They require not only legal expertise, but also a humane approach, discretion, and an understanding of the family’s situation.

If you are facing a similar situation or have questions regarding guardianship, custodianship, or the protection of vulnerable individuals, feel free to contact us.