Guardianship in family law. a doctrinal analysis

SUMMARY

Guardianship is in Family Law, the ideal means to protect those persons, subjects of law, lacking the legal capacity to act. This work is directed from a Theoretical-Legislative and Comparative Law perspective. It is analyzed in a general way how this institution is ordered in the Civil Codes of Mexico, Argentina, Spain and Honduras, Its behavior in the Family Code of Cuba. Therefore, in the development of it, we reflect among other topics: What is Guardianship, who is subject to guardianship, what are the personal elements of guardianship, what are the types of guardianship, who can be guardians, how does the guardianship end? guardianship, etc.It is the reason to consider it of social interest from the human point of view and from the legal point of view it serves to arm the lawyers of basic elements of said institution.

INTRODUCTION

Guardianship is in Family Law, the specific means of executing the protection of those persons, subjects of law, but lacking the legal capacity to act. The objective of this work is the treatment given to this institution from a theoretical-legislative and comparative law perspective and the validity of this institution in Cuban Family Law.

For this purpose, the logical-legal and comparative legal methods have been used, among other methods, which will allow to expose the behavior and proclivity of the institution of guardianship in various modern codifications and in our system of law.

The need for guardianship can be understood, of course, if one considers that the man in his first years of life or another cause not caused by him is weak and inexperienced, unable to defend himself and direct his actions; consequently, it is very fair that, in the absence of the father or mother, the means of education, defense and protection are provided.

This has been recognized by all the nations of the world, by assuming as a duty, regulating and organizing the institution of guardianship and, although this is based on universal objectives, characters and principles, alterations are perceived in the various legal regulations issued in the world.

Therefore, this study will analyze in a general way how this institution is ordered in the Civil Codes of Mexico, Argentina, Spain, and Honduras, as well as its behavior in the Family Code of Cuba, through a comparative study of each one of these laws, with the purpose of knowing and reflecting on the normative treatment given to guardianship, currently legal, in the legal bodies already mentioned.

DEVELOPING

Taking into account that, to compare is to establish the relationship between two or more things, according to similarities and differences, I will detail the elements to consider in the observation and analysis of the subject,

v What is guardianship?

v Who is subject to guardianship?

v What are the personal elements of guardianship?

v What are the types of guardianship?

v What guardianship system does the legislation apply to?

v Who can be a guardian?

v Who can excuse themselves from guardianship

v Is the exercise of guardianship of interest?

v Is guardianship always a paid position?

v How does the guardianship end?

v Are there records for guardianship?

GENERAL REFLECTION OF THE BEHAVIOR OF THE INSTITUTION OF GUARDIANSHIP IN COMPARATIVE LAW.

In the detailed study of the procedure of the guardianship institution in the modern laws of Mexico, Argentina, Honduras and Spain, it can be seen that it has been difficult and full of obstacles for legislators to provide a definition of guardianship, however, some jurisdictions la expressly describe, that is the case of the Argentine Code; those that limit themselves to determining what their object is, such as that of Mexico. Likewise, certain laws do not provide its definition or object, a model for this is the Family Code of Honduras, in which, when regulating the institute, the elements that characterize the nature of the institution can be derived.

Despite the fact that there is a tendency not to include in the Codes a disquisition of guardianship, from what is regulated in each legal body it can be said that it is conceived as the institution that is going to be in charge of protecting people who do not have legal capacity to act, whether due to natural or legal causes; It is the authority or function that is given to an individual with the capacity and aptitude to take care of both the person and the property of the ward.

Regarding the subjects covered by the protection, defense and care provided by guardianship, the propensity is variable, depending on the conception of each legislation. For this reason, in certain countries such as Mexico and Spain, guardianship is established to protect the person and property, both of the minor and of the disabled elderly person –judicially declared-. However, in certain nations such as Argentina and Honduras, guardianship is conceived to safeguard the minor only, leaving the adult -incapacitated- assisted by another institution, which is the guardianship.

It is worth noting that it is common, in modern legislation, to find an article intended to endorse the protection of those people who are in a situation of helplessness.

These subjects, who do not have anyone who can or wants to take care of them, protect them and manage their assets, are treated by the legislation of each country, stipulating the need for them to be inserted in health care establishments, where the directors of said centers will be their guardians., caring for and protecting the person of the ward, as well as their property. Said care encompasses both minors and disabled adults. Some lawyers have determined to call this guardianship automatic guardianship.

In relation to the personal elements of guardianship, these are treated differently in the Codes of each nation; the common and main piece in all tutelary regulations is the guardian, the person in charge of protecting, caring for, representing the person and property of the ward; Its functions are multiple and, although each regulation gives it a different nuance, the cardinal objective of the position is universal.

The other components of guardianship are diverse: in Mexico, the Family Judge, the Local Guardianship Councils and the Public Ministry are recognized; in Argentina, the Judge and the Ministry of Minors play a role in guardianship; in Honduras, the Judge and the Public Ministry are involved; while, in Spain, the Court and the Public Prosecutor intervene.

Linked to the personal elements that intervene in the exercise of guardianship, is to specify to which guardianship system each legislation belongs, taking into account that it is not necessary to attend to the external qualification of the guardianship bodies, but to the place they occupy in the tutelary organization of the nation.

The modern trend is aimed at establishing the authority model, leaving the family model behind, and granting coverage to the mixed.

The system of authority manifests itself in countries such as Argentina, Honduras and Spain, where cardinal powers are conferred on organs of public power, with the possibility of total interference in the functions of the tutor. However, these regulations recognize a system of judicial authority, since the bodies in charge of these important functions have a judicial character.

On the other hand, Mexico recognizes, like other peoples, the mixed model, since they are conferred primary powers, both to a judicial and an administrative body.

Regarding the types of guardianship, the proclivity in modern compilations is to recognize three of these that are classic: testamentary, legitimate and dative.

The testamentary guardianship is the one designated by the parents in a will, but all jurisdictions do not admit that the guardianship is a consequence only of parental authority, some, allow any person who leaves an inheritance or legacy to the ward to appoint a guardian, this is how It is conceived by the Codes of Mexico, Honduras and Spain, being Argentina, a people that adopts testamentary guardianship only as the right to appoint a guardian by the parents.

As for the other types of guardianship, it is legitimate, it is assumed in the cases that the testamentary guardian is missing; it provides a different exclusionary order in each regulation; while the dative is stipulated in those cases in which there is no testamentary or legitimate guardian, where the body corresponding to that endorsed in each nation will be in charge of appointing a guardian.

All guardianship regulations detail who can be guardians and, therefore, those who would be unable to perform such a delicate and important function, both for the person of the ward and for society.

A long list is reflected in each code and the differences are not abysmal, they all move around the fact that the person of the guardian has to have both natural capacity (age), and to be able to exercise rights and obligations (legal), be a citizen of the corresponding country, have financial solvency, have no misconduct, or have committed any crime, among others.

In correspondence with the inability to be a guardian, there are the reasons for excuses of guardianship, despite endorsing the laws in its articles that guardianship is a position that cannot be waived, it is allowed, for well-founded reasons, to refuse carry out the tutelary exercise.

The causes to allege for not exercising guardianship do not vary from legislation to legislation, since they all revolve around the impossibility due to age, illness, exercising certain positions and trades that make it impossible to perform the position well, having another guardianship at a cost, possessing more than a number of children, etcetera.

The current inclination in the regulations of the exercise of guardianship is to link personal interest with the patrimonial, not to unbalance the balance in preference for either of these two tendencies, since both functions are important and the objective of the tutor's activity is to care of the person and property of the ward, as recognized by the laws compared above.

It is unfortunate that the laws in their articles, give greater importance to the patrimonial interest, leaving aside or in a simple line or precept the stipulation regarding the person of the ward, his care, attention and education.

Depending on the character granted to the position of guardianship, it will be paid or not. The current in the world is the remuneration charged to the ward's assets, as recognized by the Codes of Mexico, Honduras and Spain, but, in the event that the ward has no assets, or income with which the position can be paid? would not be subject to guardianship?

It is recognized, in several laws, it is worth mentioning Argentina, that the exercise of guardianship is free of charge, considering it a duty of piety, in case the ward does not have any way to pay the guardian.

It is not common at present, but still some jurisdictions do not detail the reasons why the guardianship procedure is terminated -for example the Code of Mexico- having to infer in these cases, taking into account the doctrine and what is regulated in other legislations regarding this particular. Other Codes are concise in their regulation, but it is known that the conclusion of the guardianship is for elementary and visual reasons, among these, the age of majority, the death of both the ward and the guardian and upon the marriage of the minor, just to mention some.

Analyzing the Registers of Guardianship, it can be seen that this important body is regulated in all laws, since the register is synonymous with history, this means, the history of the various entities that intervene in it.

For this reason, it is not enough that the Guardianship Registries remain regulated by law, but rather that they are used in practice.

Approached in a general way the Tutelary institution in comparative law, then let's see how it is regulated in our positive law.

THE INSTITUTION OF GUARDIANSHIP IN CUBA

The previous section analyzed, as part of the history, the behavior of the institution of guardianship in the Spanish Civil Code, extended to Cuba and in force in this matter until 1975, then let's see the regulation of this institution from the revolutionary triumph from 1959..

THE INSTITUTION OF GUARDIANSHIP IN CUBA FROM 1959. THE FAMILY CODE OF 1975

It is from the triumph of the Cuban Revolution on January 1, 1959, that in our country, in parallel with the process of building the new society, the transformation of the bourgeois family to the socialist family also begins; promulgating in 1975 the Family Code (Law 1289), repealing all the previous legislation on Family Law that was contained in the Spanish Civil Code of 1888, made extensive to Cuba in July 1889.

There were reasons for repealing the Spanish Civil Code, its articles were completely contradictory to the revolutionary process, and the nuance presented by the tutelary institution needed to be reformulated, substantially deferring from the previous legislation.

Under the foundation of simplifying the guardianship procedure and offering true guarantees to the person subject to guardianship, the Spanish Civil Code was modified, made extensive to Cuba, and the Cuban Family Code of 1975 was drafted, thus adapting the tutelary institution of the principles that govern socialist society.

The Cuban Family Code does not offer a concept of guardianship, it is only limited to endorsing in article 137 the object of the same, namely:

Ø · The custody and care, education, defense of rights and protection of the patrimonial interests of minors who are not under parental authority.

Ø · The defense of rights, the protection of the person and patrimonial interests and the fulfillment of the civil obligations of those of legal age, incapacitated, that have been thus declared judicially.

Article 138 legalizes the people who would be subject to guardianship, which are:

Ø · Minors who are not under parental authority, being considered a minor up to 18 years of age (Article 29.1, subsection a, of the Cuban Civil Code).

Ø · Those of legal age, who have been declared legally incapacitated to govern their person and property, due to mental derangement, deaf-muteness or other cause.

From the analysis of these articles, it can be inferred that guardianship is an institution conferred for the protection, care, education and defense of the rights of the person, as well as the patrimonial interests of minors, who are not under the patria authority, and those of legal age who have been declared legally incapacitated.

An aspect to highlight in our family legislation, and, especially, considering the object of guardianship, is that the personal character and the patrimonial nature that the guardianship entails are intertwined, not one obligation predominates over another, but rather that both go to the pair.

It is worth noting that our Family Code did not make any distinction between guardianship and guardianship, the former being responsible for protecting minors and those of legal age without legal capacity to act.

This legislation eliminated the obligation to accept the position of the tutor, establishing the principle that the acceptance of the position is voluntary (article 139).

The institution of guardianship is regulated in our Family Code as a free position, for being at the same time voluntary, since in socialist society, pecuniary and economic interests were renounced that would move the guardian to act for their own benefit, such as as it happened in many cases previously, but they appealed to laudable purposes, inherent to said position.

However, article 157 provides that the guardian may reimburse himself for the justified expenses that he may have in the exercise of guardianship, prior authorization of the Court, but the amounts that are delivered to the guardian are only as reimbursement for expenses incurred by him, so that he should not obtain an economic advantage from it.

GUARDIANSHIP CLASSES

By abbreviating the institution of guardianship in the Family Code, a single type of guardianship was established. In this regard, Dr. Peral Collado states that a guardianship of authority is implemented, since the Court is in charge of appointing a guardian.

In turn, the Family Council was abolished, establishing in its place the Court, a body that would be in charge of establishing guardianship, taking into account what is most beneficial for the disabled minor or elderly person, resulting in the designated guardian being the ideal person for such high ends.

The Court was not created as a substitute for the Family Council in the powers it had, the Municipal Prosecutor's Office was instituted as a replacement for the Family Council, which would assume the functions that corresponded to it in the repealed Civil Code.

Returning again to the subject of guardianship classes, the Cuban doctrine is not clear, as to what type of guardianship the family law accepted, was it the testamentary, legitimate or dative?

It could be thought that the established guardianship is the dative one, based on the fact that it is the Court who appoints the guardian, but for us it is legitimate for reasons that we will argue later.

Of what if there is no doubt is that the testamentary guardianship is repealed, but who better than parents to designate the person who after his death would continue to monitor their children?

Upon being supported by the Cuban family body, the courts (judicial authority, to take charge of such broad powers granted and recognized by law, a model of authority guardianship was established then, leaving behind the family guardianship system, with its stone angular, the Family Council recognized in the Spanish Civil Code.

GUARDIANSHIP OF MINORS.

Regarding the guardianship of the minor, the Family Code provides that, when constituting the guardianship, the Court will summon his relatives up to the third degree, who reside with him in the same city, for the purpose of holding an appearance in which he will hear the relatives who attend, and the minor, if he is more than 7 years old, and will proceed to the appointment of the guardian taking into account article l145):

· The minor's preference and the majority opinion of the aforementioned relatives.

· If the guardian cannot be appointed, according to the foregoing, the Court will decide on the basis of what is most beneficial for the minor and whoever is accompanying him preferably.

· If he is not in the company of any relative, or of being in the company of several at the same time, he will prefer his grandparents first, one of his brothers second, and an uncle third.

· Exceptionally, when special reasons so advise, the Court may adopt a solution outside the previous order, including appointing a guardian to a person who is not related to the minor. In this case, he will designate the person who shows interest in taking care of him, preferring the one who has taken care of him.

Previously, I had to reflect on the type of guardianship that our legal body took advantage of, affirmed that legitimate guardianship was recognized instead of dative, because taking into account that guardianship corresponds to those designated by law, it is then resolved in this legal body those who would be guardians in a decreed order, and then it is provided that the Court could adopt a solution outside that order.

In reality, this article is identified with what is recognized in the doctrine and in universal laws as legitimate protection.

Dative guardianship is when, in the absence of legitimate guardianship, the Court would consider the Prosecutor's proposal and appoint a guardian, selecting him from among other relatives or people who show interest in exercising said position.

Article 147, regulates that the directors of the healthcare establishments or those of education or re-education, as well as the heads of the military or paramilitary units, shall be the guardians of the minors who live in said establishment and are not subject to parental authority or guardianship, with the same powers of parental authority.

WHO CAN BE GUARDIANS?

To be appointed guardian of a minor, it is required, according to the provisions of article 146 of the Family Code:

· Be of legal age and be in full control of civil and political rights.

· Have sufficient income to pay the minor's expenses as necessary.

· Not having a criminal record for crimes against the normal development of sexual relations, family, childhood and youth, or for others that, in the opinion of the Court, disqualify them from being a guardian.

Enjoy good public opinion Be a Cuban citizen.

· Not have antagonistic interests with those of the minor.

GUARDIANSHIP OF THE DISABLED OLDER AGES.

The guardianship of the elderly, declared disabled, will correspond, according to the provisions of article 148 of the Family Code to:

The husband ·

. One of the parents.

One of the sons One of the grandparents One of the brothers

When there are several relatives of the same grade, the Court will constitute guardianship, taking into account what is most beneficial for the disabled person.

Exceptionally, when there are reasons that advise it, the Court may appoint a guardian to a person other than those listed above. In this case, he will prefer the person who takes care of the incapable person or who shows interest in assuming guardianship.

It is worth making an observation regarding the guardianship of the disabled adult, conferred on the parents, (it would not be more legal to remain the disabled person of legal age under parental authority, even after having reached the age of majority, than subject to a guardianship that is called legitimate, subjected to incomprehensible surveillance?

If parental authority finds its limits when the child can direct himself, it is evident that in the case of a judicially declared incapacitated person, this limit will never be reached while this situation subsists.

WHO CAN BE GUARDIANS OF THE OLDER AGE.

As a requirement to be a guardian of a disabled adult, the same parameters are required as to be a minor, with the difference that they cannot act as guardian, in this case, those who have a criminal record for crimes against property or against people or due to others who, according to the Court's criteria, disqualify them from being a guardian.

And, is it not a danger that the guardian of an incapacitated adult has a criminal record for crimes against the normal development of sexual relations, the family, childhood and youth? Or, on the contrary, does it not constitute a danger that the guardian of the minor has a criminal record of crimes against property or against persons?

This distinction made by the legislator is not conceivable - in my opinion - it is a risk that a guardian has a criminal record for having committed intentional crimes, no matter the transgression committed, because it is understood that to assume such an important and delicate position, which is to carry to carry out a good tutelary exercise, proper conduct is needed in society.

Article 150 establishes that the directors of the health care establishments will be considered as guardians of those of legal age, disabled, who are interned in said establishments, and who are not subject to guardianship, for the same purposes as for minors old.

EXERCISE OF GUARDIANSHIP

The guardian represents the minor or disabled person in all civil or administrative acts (article 151).

Article 152 provides that minors subject to guardianship, owe respect and obedience to the tutor, who may reprimand and correct them moderately.

In the Cuban Family Code, both personal and patrimonial interest are linked in the exercise of guardianship, since the guardian is obliged to take care of the food of the ward and of his education if he is a minor; to ensure that the incapacitated person acquires or recovers her capacity; make an inventory of the assets of the minor or disabled person; diligently administer the assets of the minor or disabled person; and request the authorization of the Court in a timely manner, regarding the necessary acts that cannot be carried out without it (Article 153).

In Cuba, the guardian needs court approval to:

v Request the assistance of the authorities for the purpose of placing the ward in a care or re-education establishment

v Perform acts of ownership or any other act that may compromise the patrimony of the ward.

v Repudiate donations and inheritances or accept them

v Make major investments and repairs in the assets of the minor or disabled person.

v To compromise or acquiesce in lawsuits that are established against the minor or incapacitated person.

REMOVAL FROM THE POSITION OF GUARDIAN

Removing the guardian means removing him from the exercise of guardianship for having engaged in certain behaviors that give rise to it.

In accordance with article 159, when the guardian, during the exercise of guardianship, has ceased to meet the requirements for his appointment or when he fails to comply with the obligations imposed on him, the court may at the request of the Prosecutor, order his removal.

The same persons recognized in the Family Code, according to article 140, who can inform of the need for guardianship, the task of informing the Prosecutor of the facts that may determine the removal of the guardian is imposed.

LEGAL EXCUSES FROM GUARDIANSHIP

Acceptance of the position of tutor is voluntary; but once accepted, it cannot be waived, except by virtue of a legitimate cause, duly justified in the judgment of the Court (Article 139).

I do not believe that this single article is enough to regulate that it is possible to resign from the exercise of guardianship in the event that indisputable causes are presented, will it not be necessary to determine what are some of those pretexts that could be alleged?

I consider that it is necessary and of vital importance, to relate in an article, with the appellation of excuses of guardianship, those reasons that could be adduced for not exercising the position of guardian, as an example I can cite that: those who were in charge of another Guardianship cannot carry out this task, or those who occupy positions that imply high responsibility and occupation and cannot fully meet the obligations inherent to said institution.

ACCOUNTABILITY OF GUARDIANSHIP

Accountability for guardianship is the appropriate means to control the activity of the guardian. The latter must report its management to the Court, at least once a year, at the opportunity indicated by the latter. It must also do so as many times as the body itself so provides (Article 158).

I think that a line should be included in this article that endorses that the tutor must be accountable at the end of the exercise of his performance, as well as that it is essential, at the end of the guardianship obligation, to report the final status of the management carried out, regarding to the person of the ward and the state of his assets.

TERMINATION OF GUARDIANSHIP

Article 160 provides that the guardianship concludes by:

ü · The minor must reach the age of majority, marry or be adopted.

ü · The cause that motivated it has ceased, in the case of a disabled person.

ü · Death of the ward, and if the guardian dies, is the guardianship not terminated?

REGISTRATION OF GUARDIANSHIP

In the Courts in charge of supervising the guardianship, a book is kept, in which the reason for the guardianship constituted in their territory is taken (Article 162), resulting of great importance for the data it provides, and the control that can be exercised through the same.

THE INSTITUTION OF GUARDIANSHIP IN A PROJECT TO REFORM THE FAMILY CODE, OCTOBER 1996

The Cuban Family Code, promulgated in 1975, was a milestone in the development of the ethical and moral values of the Cuban family, but the new realities and experiences accumulated in the course of the years of validity of this Code advise the improvement of some regulated institutions in the.

Among the institutions to vary, is the guardianship, which has been given a different hue in terms of its organization.

In this section, the novel aspects established in the Family Code Reform Project, which are completely divergent from what is established in Law 1289, will be briefly analyzed, thus avoiding repeating previously analyzed content.

DEFINITION OF GUARDIANSHIP

In this Project, a concept of guardianship is established and it is conceived as an authority that is conferred on a person who exercises, in favor of the minor not subject to parental authority, or of the legal adult declared legally incapacitated, the protection and the care of said people and property, and to represent it legally.

It does not detail, in another article, who is subject to guardianship, since the definition is broad and describes who are in need of security.

GUARDIANSHIP CLASSES

The conception of the types of guardianship is extended in the project, since three classes are regulated: testamentary, legitimate and dative guardianship.

WHO CAN BE GUARDIANS ?

Regarding the people who can be tutors, the purpose is broader, coherent and precise, providing that they will require:

Have full capacity to carry out legal acts Be a Cuban citizen, and be domiciled in the place where you exercise guardianship Have sufficient income to meet the needs of the ward Have good public opinion and have no criminal record Not have been sentenced to deprivation of the exercise of parental authority or guardianship.Not having been legally removed from another previous guardianship.That there is no lawsuit or pending litigation between the presumed guardian and his ward.Not suffering from chronic contagious disease, or vice that could endanger health, the safety or morals of the ward. Not to be a creditor or debtor of the minor or incapacitated for an appreciable amount in relation to their assets, at the discretion of the Court.

GUARDIANSHIP EXCUSES

The Family Code Project lists the reasons for apologizing for the exercise of guardianship, namely:

Those who, by virtue of holding a position that implies high responsibility and occupation, cannot fully attend and comply with the obligations inherent to guardianship. Those who have 3 children or more under their parental authority, or another significant family burden. Those over 65 years Those who have to be absent from the country for more than 6 months Those who, due to health reasons, could not properly fulfill the duties of the position.

As long as what is alleged as an excuse is resolved, the one who has presented it will be obliged to exercise the position provisionally, unless the court decides otherwise in the interest of the ward.

ACCOUNTABILITY OF GUARDIANSHIP

Only the project is limited, to endorse that the guardian will be obliged to render accounts of his administration to the Court when the guardianship concludes.

And, is it not necessary to render accounts in the time that the guardianship is being exercised, even if it is annual?

TERMINATION OF GUARDIANSHIP

The reasons for the termination of the guardianship, provided in the project are:

· Having ceased the cause that motivated it, why better not to detail the causes for which the guardianship was instituted, which at the end they extinguish said exercise?

· The death of the ward and the guardian.

This Family Code Project is a step forward in this matter, since it is undoubtedly tempered with the current Cuban reality somewhat different from that of 1975, and although I do not coincide with few aspects stipulated in the Project, I consider that it is more finished and prosperous.

CONCLUSIONS

Following a detailed analysis of the procedure of the institution of guardianship, I can conclude that:

- From subjective right, guardianship, became a duty that the State would oversee due to its social importance, but keeping its reason unalterable, understanding that it is an institution that is part of universal law, with the purpose of helping, defending, protect people and property that are not under parental authority and that, due to their disability - due to age or other causes - cannot fend for themselves as subjects of law.

- From the ancient and fundamental Roman Law, three kinds of guardianship were regulated: testamentary, legitimate and dative, a division that has spanned the centuries and is still preserved in the universality of the Codes, which have preferred to follow the purity of tradition.

- The subjects of guardianship were variable since ancient times, in Roman law guardianship was conceived to protect the person and property of the minor, and the institution of guardianship for the adult who was crazy, prodigal, etc. with the aim of protecting the assets of these people. However, in German law and followed by several codes that marked milestones in history, the adult was placed in interdiction, which is why they would be under guardianship, under the same considerations as a minor.

- Since the institution of guardianship was recognized and regulated in different Legislations, provisions were issued to detail: the classes of guardianship, the inability to be a guardian, the excuses for said performance, the exercise of the same and, consequently, the responsibility of the guardian in his guardianship, the removal of the guardian for the reasons stated in the law, as well as the termination of the guardianship.

- In modern legislation, the line established in the legal bodies of antiquity is followed, regarding those subject to guardianship, because although the modern trend is to conceive guardianship as defense and protection of minors and disabled elderly, -declared thus judicially- some jurisdictions admit in guardianship only minors, while those of legal age are placed under the care of another institution that is the guardianship.

- The proclivity in the world is to establish the authority system and cover the mixed, leaving the family in disuse.

- The paid nature of guardianship is recognized in current legal bodies, despite the fact that guardianship is considered to be public in nature.

- The guardianship records have been, a mirror where the entire life of the institution is reflected; It is the dark chamber where the behavior of all the people involved is recorded and fixed.

- It is the Cuban Family Code, which repealed the matter of the institution of guardianship that was regulated in the Spanish Civil Code. This family legislation, with the aim of simplifying the guardianship institution, eliminated two kinds of guardianship, leaving only one established which, in my opinion, is legitimate; Furthermore, the Family Council is eliminated, thus instituting, as supervisory bodies in the exercise of guardianship, the Court and the Public Prosecutor's Office, the matter of guardianship then belonging to the authority system. In this way, the family model is left behind; likewise, the figure of the protutor is annulled.

- The new realities, and experiences accumulated in the course of the years of validity of the Family Code, advise the improvement of the institution of guardianship. For this reason, there is a Cuban Family Code Project, dated October 1996, which has been a step forward, since it is tempered with the Cuban reality, which is somewhat different from that of 1975, the date on which the Code was conceived. of family.

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