The guardianship of a minor is required when no parent can exercise parental responsibility. In an already delicate situation, it is understandable to wonder who can make decisions for the child, who can represent them before a bank or a public body, what happens to an inheritance, and how the use of their money is controlled.
In this guide, I want to clarify when guardianship is opened, how the guardian is chosen, and what limits they encounter in the personal and property management of the minor. We will also see why hosting a grandchild or a sibling does not automatically equate to being their guardian and what tools exist if unexplained expenses, unauthorized acts, or management that does not appear transparent emerge.
When Minors' Guardianship Opens
Guardianship is necessary when both parents have died or cannot, for other reasons, exercise parental responsibility. This is the rule established by Article 343 of the civil code: the decisive point is not merely the physical absence of the parents, but the impossibility for both to represent the child and make the decisions that the law attributes to them.
A minor may live with grandparents, an uncle or aunt, or another adult for family, school, or care reasons. Cohabitation alone does not confer legal representation. If at least one parent retains the power and possibility to exercise parental responsibility, guardianship does not automatically replace that parent. It is therefore necessary to distinguish who takes care of the minor every day from who can sign documents and make legally relevant choices in their name.
Guardianship does not coincide with family foster care or placement in a community home either. Those measures primarily concern the care and welcoming of the minor; the appointment of a guardian, on the other hand, concerns representation in civil acts and the administration of assets. The Court of Vicenza summarizes these prerequisites and identifies, as a rule, the tutelary judge of the place where the minor's main center of interests is located, normally linked to their residence or habitual abode. Institutional guidance on minor guardianship.
How the Appointment of the Guardian is Reached
The procedure begins by reporting the situation that makes guardianship necessary to the competent tutelary judge. The acts and documents specifically requested may vary depending on the judicial office, but it is necessary to clearly explain why both parents do not exercise parental responsibility and attach elements proving it, such as death certificates, judicial measures, or other relevant documents.
The law mandates communications to certain subjects, such as the civil status registrar who receives a declaration of death leaving minor children, the notary who publishes a will designating a guardian, and the court clerk who files a measure from which the opening of guardianship derives. Close relatives, the designated person, and other individuals who know the situation can also bring it to the judge's attention. It is not necessary to wait for a property problem to arise if the minor is already lacking effective parental representation.
The judge gathers useful information and appoints the guardian by decree. The guardian assumes their functions after taking the oath. A vice-guardian may also be appointed: this is not a second guardian participating in all daily decisions, but someone who intervenes primarily if there is a conflict of interest between the minor and the guardian or if the guardian is missing and urgent acts must be performed.
Who Can Be Chosen and What Significance the Parent's Will Has
The choice made by a parent matters, but it does not replace the judge's decision. Article 348 of the civil code gives weight to the designation made by the parent who last exercised parental responsibility. The designation may result from a will, public deed, or authenticated private writing. However, the judge may not appoint the indicated person if there are serious reasons contrary to the minor's best interests.
If a designation does not exist, is not effective, or the indicated person is unsuitable, the choice may fall on ascendants, other close relatives, or relatives by affinity. Kinship is a criterion, not an automatic right. The judge must consider the concrete suitability of the person, their conduct, their ability to perform the task, and the absence of interests conflicting with those of the minor.
An economic conflict deserves attention from the very beginning. Anyone intending to purchase an asset from the minor, claiming a credit against them, or involved in a dispute with them cannot be treated as a neutral figure in that specific transaction. In these cases, the vice-guardian can represent the minor, preventing the same adult from finding themselves, in effect, on both sides of the decision.
The Guardian's Duties in Personal Care and Asset Management
The guardian takes care of the minor's person, represents them in civil acts, and administers their assets: these are the functions indicated by Article 357 of the civil code. Guardianship therefore concerns daily life and, when necessary, relations with schools, health facilities, public administrations, banks, successions, and assets registered in the minor's name.
This power does not allow the guardian to make decisions according to their own needs or those of their family. Choices must be directed toward the interest of the minor, who remains the owner of their assets. The minor's money must not be mixed with that of the guardian. If the guardian advances expenses or incurs costs for the child's care, the origin of the sums, the destination, and the reason why that expense effectively concerns the minor must remain understandable.
Asset management must be verifiable. Following the appointment, the estate must be reconstructed through an inventory when required; furthermore, the guardian must keep regular accounts and render an annual account to the tutelary judge. Bank statements, receipts, invoices, contracts, and authorization measures are not pointless formalities: they allow distinguishing the minor's income and outlays from the adult's personal expenses. Duties of inventory, accounting, and reporting in guardianship.
Minor's Estate: Acts Requiring Authorization
Ordinary expenses are not a sale. The outlays necessary for the minor's maintenance and the current administration of their estate follow a logic different from acts that reduce, transform, or expose their assets to risk. For this reason, not every payment requires the same control, but not every operation can be justified as a daily expense.
Article 374 of the civil code requires the authorization of the tutelary judge for particularly significant acts: these include the purchase or sale of assets, the collection of capital, the establishment or cancellation of property guarantees, the assumption of obligations beyond necessary expenses, the acceptance or waiver of inheritances, divisions, transactions, and the initiation of legal proceedings, barring exceptions provided by the same rule.
Authorization must be requested before the act. The reform implemented by Legislative Decree No. 149 of 2022 reassigned authorizations provided by the current Article 374 to the tutelary judge and repealed Article 375 of the civil code. The provisions apply, according to transitional rules, to proceedings introduced after February 28, 2023; guardianship already opened before that date therefore also requires attention to transitional rules. Legislative Decree No. 149 of 2022, amendments to Articles 374 and 376 of the civil code.
Sale of Real Estate, Inheritance, and Significant Sums
The guardian cannot freely sell a minor's property, renounce an inheritance, or collect capital to then decide its destination without control. The request to the judge must explain the operation, the concrete interest of the minor, and the proposed conditions. For a sale, Article 376 assigns the tutelary judge the task of setting the methods and limits of the operation, including how to disburse or reinvest the price. For public deeds and authenticated private instruments covered by Article 21 of Legislative Decree No. 149 of 2022, the notary executing the deed also has alternative authorisation powers. This route has its own checks and communications; authorisation takes effect after twenty days without an appeal.
The decisive fact is not that the operation makes management easier for an adult. Selling an asset can be useful if it avoids unsustainable costs or better protects the estate; conversely, it can harm the minor if the price is inadequate, if an actual reason is lacking, or if the buyer is connected to the guardian. Utility must be referred to the minor, not to the convenience of the person representing them.
What Happens if the Measure Is Lacking
The absence of authorization can render the act voidable. However, it is not enough to state in the abstract that an operation is irregular: it is necessary to identify the single act, the date, the power the guardian exercised, and any authorization required. The consequence does not always coincide with automatic nullity, but may open a specific procedure provided by the civil code.
A private writing between family members or an informal reimbursement does not replace judicial authorization when required. If the act concerns a minor's asset or capital, the situation must be brought before the competent authority with clear documents: contract, notarized deed, bank statements, any authorizations, and proof of the destination of the sums.
Irregularities and Mala Gestio: How to Distinguish Suspicion from a Concrete Problem
Family disagreement alone does not prove mala gestio. Instead, it is relevant to ascertain whether accounts, bank statements, or supporting documents are missing; whether there are unexplained withdrawals from the minor's account; whether a sale was concluded without authorization; or whether the resources of the guardian and the minor appear confused. Verifiable facts allow the judge to distinguish incomplete accounting from use incompatible with the duties of the office.
Anyone fearing an irregularity can turn to the tutelary judge by setting out facts, dates, and available documents. The appointment decree, statements of accounts registered in the minor's name, filed reports, receipts, contracts, notarized deeds, and authorization measures can be important. Requesting control does not mean formulating generic accusations: it means bringing to the judge's attention management that requires clarifications or interventions.
Article 384 of the civil code allows the removal of a negligent guardian, anyone who abuses their powers, or anyone who proves incompetent in exercising the office. Removal is not an automatic response to every conflict: it presupposes conduct that prejudices or concretely puts the minor's interests at risk. Depending on the problem, the account, the missing authorization request, the replacement of the guardian, or the protection of the minor in a specific conflict of interest may be relevant.
Before Requesting an Appointment, Authorization, or Control
The first question is who currently represents the minor. Before asking to open guardianship, replace a guardian, or control management, it is necessary to clarify whether an appointment decree already exists, whether one of the parents can still exercise parental responsibility, and whether proceedings affecting the child's care are pending. These are different situations and lead to different requests.
When the problem is property-related, the minor's estate must then be separated from the expenses of the adult welcoming them. A documented payment for school, health, or maintenance may directly concern the child; a withdrawal from their account for expenses extraneous to their care poses a different problem. Explanations and documents matter more than reconstructions from memory.
If you need to navigate between guardianship to be opened, an existing appointment, property authorization, or reporting irregularities, you can contact me. Together with my staff, we can help you trace the facts back to the relevant measure and judicial path.
Frequently Asked Questions
Can I be appointed guardian even if other relatives exist?
Yes, but not automatically. The tutelary judge chooses the suitable person in the interest of the minor. The designation made by the parent carries weight; in the absence thereof, ascendants, relatives, and relatives by affinity may be considered. However, a conflict of interest, inadequate conduct, or facts demonstrating unsuitability can prevent the appointment.
Does a grandfather hosting his grandson automatically become a guardian?
No. Hosting and assisting a minor does not in itself confer the power to represent them in civil acts. Guardianship arises when the prerequisites of Article 343 of the civil code are met and the judge appoints the guardian. If a parent can still exercise parental responsibility, their position must be clarified first.
Can the guardian sell a minor's real estate?
Only with the authorisation required by law. The judicial route is governed by Articles 374 and 376 of the Civil Code. For notarial instruments covered by Article 21 of Legislative Decree No. 149 of 2022, the notary executing the deed may also grant authorisation. Both routes must safeguard the minor’s interests and comply with the relevant conditions, controls and requirements for use of the proceeds.
Must the guardian present an account?
Yes, management must be traceable. The guardian must keep regular accounts and render an annual account to the tutelary judge. Bank statements, receipts, and transaction documents allow verifying that the minor's sums remain separate from those of the guardian and are used for needs concerning them.
What can I do if I fear the guardian is misusing the minor's money?
You can report documentable facts to the tutelary judge. It is useful to indicate operations, dates, sums, missing documents, and unrecorded authorizations. The judge can check management and, if negligence, abuse of powers, or unsuitability emerge, can remove the guardian. An unauthorized act may also pose a distinct issue of voidability.
Essential Regulatory References
Basic regulations are contained in Articles 343 et seq. of the civil code, dedicated to the guardianship of minors. For property authorizations, the current Article 374, amended by Legislative Decree No. 149 of 2022, is particularly relevant; the Ministry of Justice has also clarified that the reform concentrated the authorizations requested of the guardian with the tutelary judge. Circular of the Ministry of Justice on applications addressed to the tutelary judge pursuant to Article 374 of the civil code.