An appointment of guardian is the notarial document that allows any person to anticipate an eventual death or situation of illness or deficiency that prevents him/her from governing him/herself, for the purpose of determining which person he/she wishes to be appointed as guardian for his/her minor children.
This is a merely informative and non-binding estimate. It is calculated on the basis of two criteria: 1) our knowledge of the Notarial Tariff and 2) our daily experience in the preparation of this type of notarial document. (Royal Decree 1426/1989, dated November 17, 1989). and 2) our daily experience in the preparation of this type of notarial document. However, any variation (upward or downward) will be duly justified at the time of issuing the final invoice for the notarial service rendered.
Ordinarily, when we reach the age of majority, we acquire full legal capacity, which implies that, in principle, we can fend for ourselves, develop an independent life and, also, that we have the capacity to celebrate, by ourselves, all kinds of legal acts or businesses in a valid manner.
<ejemplo>Así pues, por ejemplo, cuando una persona cumple los dieciocho años, ya podrá independizarse y adquirir una vivienda e hipotecarla para financiar dicha compra.<ejemplo>
On the contrary, minors, until they reach the age of eighteen, are normally subject to the parental authority of their parents, so that it is up to the latter to look after their welfare, providing them with everything necessary to ensure their adequate growth and personal development until, in principle, they reach the aforementioned age of majority.
However, it may happen that, as a result of the death of the child's parents, or in the event that the parent who has sole parental authority suffers a neurodegenerative disease or a traumatic accident that impairs his or her natural capacity to understand and will, in such situations it may be necessary to appoint a guardian to look after the interests of the child, attend and care for him or her, providing everything that is necessary for his or her proper and balanced development as a person.
<ejemplo>Así pues, por ejemplo, si los padres de un menor de edad fallecen en un accidente de tráfico, será necesario nombrar a un tutor para que éste cuide y vele por los intereses de ese menor huérfano.<ejemplo>
In view of the above, if any of these circumstances occur, it will be necessary to appoint a guardian, that is to say, to designate a person to watch over the minor, take care of him/her and represent him/her in all legal acts or business that may be necessary.
The appointment of the guardian, in accordance with the provisions of civil and procedural regulations, will always be determined by a Judge, who must decide what is appropriate, in a reasoned judicial sentence issued within the framework of a special judicial process, held with all the guarantees.
However, for this appointment, it is necessary to indicate that the Judge, in order to designate the specific person who will assume the guardianship of that minor, will be bound by the designation that, if applicable, would have been made by the parent or parents of the minor, either in a will (in case of death) or in a public deed of appointment of guardian (institution now analyzed), in the case of death without a will (or with a will without such a provision) or in the case of suffering a neurodegenerative disease or a traumatic accident that impairs the natural capacity of the parent to understand and to will and, therefore, his or her capacity to exercise parental authority over the minor.
However, if there is no such express designation in a will or public document granted for this purpose, the judge will appoint a guardian to the closest relative who can adequately exercise this position (such as a grandparent, or an uncle of the minor) and, failing that, if this is not possible or if there is no suitable relative for the position, the judicial authority will appoint a legal person, public or private, non-profit, who can satisfactorily assume the position.
As just indicated in the previous question, the appointment of the guardian will always be made by the judicial authority, but, nevertheless, if the person in question has designated which specific person should assume the guardianship of his children, the Judge must respect that will (hence the denomination of voluntary delation).
Thus, this voluntary disclosure can always be made in a public deed:
The granting of this document will allow, on the one hand, to choose the person that we prefer to carry out this task (or that we do not want to assume it, expressly excluding him/her), a choice that the judge will respect unless there is justification to the contrary.
And, on the other hand, it will allow us to establish the rules for the exercise of the guardianship, remuneration, faculties, limitations, etc., which is very interesting, since the care of our children will be carried out under the rules and guidelines that we establish, by the person we have designated.
In addition to the provisions that can be established in a will, it is interesting that the parents grant this kind of document because the appointment determined in the will can only be taken into account in case the parent dies, but if, for example, the parent suffers an accident or degenerative disease that prevents him/her from taking care of his/her child or children, the appointment made in the will cannot be taken into account, since that person has not yet died. Therefore, for these situations, this instrument of the deed of appointment of guardian is very interesting.
In these cases, the law determines that the will of the person who expressed it last shall take precedence.
Indeed, the law allows that, either in the deed that is granted or in the will, the interested party may appoint substitutes, so that, if the person initially appointed is unable or unwilling to assume the position, the substitute or substitutes that are appointed will assume it, and in the order that is preferred and expressed in the document.
If a deed of appointment of a guardian is granted, this appointment will be communicated to the Registry of Non-Testamentary Guardianship Appointments, so that this will is properly registered, so that, in the event that the appointment of the guardian is necessary, this Registry can be consulted to certify whether that person made any appointment or not.
As a general rule, the guardianship position is foreseen to be exercised by one person only. However, as exceptions, the law provides for:
In addition, the law also allows the possibility of leaving the personal care of the ward in the hands of the guardian, while the administration of the ward's estate remains in the hands of an administrator.
However, as indicated above, substitutes may be appointed in the event that the first named is unable or unwilling to accept the position.
Although in Catalonia it is foreseen that the position is free of charge, the person who appoints a guardian by public deed has the opportunity to determine in it the rules that will govern this guardianship and, among others, the remuneration of the position if desired. In any case, they are entitled to reimbursement of expenses and compensation for damages for this exercise from the assets of the person assisted.
In order to be appointed guardian of a person, it shall be necessary to be of legal age, have full capacity to act and, likewise, not be subject to any of the following causes of incapacity:
In such a case, the regulations provide for the possibility of appointing a legal entity (e.g., a foundation or NGO) whose purposes include the protection of persons in need of assistance and support in the exercise of their legal capacity and/or minors.
During the exercise of the position, the Catalan civil law establishes a series of obligations aimed at protecting the personal and patrimonial situation of the ward.
The guardianship is extinguished in the event of any of the following causes:
In all these cases, upon leaving office, the guardian must render a justified general account of his or her administration before the judge within three months.
In accordance with the new legal regime existing in our legal system after the entry into force of Law 8/2021, he/she will no longer be subject to the guardianship that, if necessary, would have been established on the basis of the designation established in this deed of appointment of guardian, but will be subject, if necessary, to any of the support or assistance measures provided for in the new regulations (see de facto guardianship or curatorship, in common civil law, or assistance, in the area of Catalan civil law).
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The original and valid copy of the original must be provided
To prove the existence of the minor children for whom the guardianship appointment is desired
