Tutorship is sought when minors are left without someone with parental responsibility, either because both parents have died or because the parents have forfeited their parental authority. Since a minor is held to be legally incompetent, then someone deemed competent needs to act as a tutor for such minor.
The notion of tutorship is an age-old concept dating back to Roman times. In Roman law, tutorship was even applied to women. However, nowadays, in civil law, tutorship applies only to unmarried minors. In fact, minors remain under tutorship until they either get married or come of age, when they are deemed to acquire legal competence.
As soon as a minor lacks someone with parental responsibility, anyone who has an interest in such an individual can ask for a tutor to be appointed for that minor.
When determining the tutor to be appointed, the court will note whether the parents have entered a specific consideration for tutorship in their will. Preferably, and always if it is in the best interests of the child, the tutor will be the closest relative by consanguinity.
However, the best interests of the child are supreme and if the closest relative by consanguinity is not the ideal person to be appointed, s/he will not be appointed. This is in line with the United Nations’ Convention on the Rights of the Child wherein the “... best interests of the child shall be a primary consideration” (article 3 of the convention).
The court can even appoint more than one tutor if it deems it necessary and it can also determine their specific duties and obligations. However, if such duties are not specified, then the tutors have to act jointly and they are jointly and severally liable for the actions taken by any of them.
Any person of age can be appointed as a tutor. Excluded are people who: cannot administer his/her own property freely; has a conflict of interest with the minor; is an undischarged bankrupt; has been sentenced to more than one year imprisonment; has been found guilty in anything that affects the good order of the families; has been convicted of fraud; is of ill-repute; is manifestly untrustworthy; is negligent or is a trustee of the property of the minor.
An inventory of the minor’s assets will be drawn up by the tutor so that the minor’s assets are properly safeguarded and also for the tutor to bind himself by a hypothec to guarantee the safe administration of the property of the minor. These are all measures taken to protect the minor’s interests. In addition, the court can order the tutor to present a yearly account of the administration of the property of the minor.
The tutor’s role is not simply to administer the property of the minor but it extends to the care of the person of the minor and to represent the minor in all civil matters. In other words, s/he would be acting as if s/he is the minor’s parent. In fact, the minor is expected to obey the tutor just like a parent in anything that is according to law.
However, the education, habitation and maintenance of the minor will be decided by the court.
There are other checks and balances regarding the tutor. Besides having to present a yearly account, if needed, the minor himself or anyone on his behalf can file a complaint against the tutor for the maladministration of the property of the minor. Thus, even though the tutor is to act as the administrator of the property and of the person of the minor, the court is the ultimate overseer. And if the tutor, either through neglect or through blatant abuse, does not act as a bonus pater familias, that is, like a good father of the family, then the tutor can be taken to court.
Since the court is the ultimate overseer, it can order certain movables belonging to the property of the minor to be sold or to be deposited for safe-keeping. The same applies for commercial establishments that form part of the minor’s estate; the court can either order their liquidation or to continue generating commercial activity.
Therefore, as one can see, the court has a definite say in certain matters pertaining to the estate of the minor. In fact, the tutor is not allowed to take certain actions, such as loans or the transfer of any capital, without prior authorisation by the court.
The role of the tutor is a very responsible one and, thus, the tutor needs to keep a proper account of the financial administration of the minor’s estate.
Ann Marie Mangion is a lawyer and a published author with a special interest in family and child law.