How does a special guardianship order work?

How does a special guardianship order work?

Types of guardianship

Guardianship is the right conferred by law to govern the person and property of a minor, who is not subject to parental authority, and to represent him/her in all acts of civil life.

The relatives of orphaned minors are obliged to inform the magistrates of the case of orphanhood or of the vacancy of the guardianship; if they do not do so, they are deprived of the right to the guardianship granted to them by law.

Clauses that exempt the guardian from making an inventory of the minor’s assets, or from giving an account of his administration every time he is ordered to do so by this code, or that authorize him to enter into possession of the assets before making the inventory, are forbidden and shall be considered unwritten.

The guardianship must be served by only one person, and it is forbidden for parents to appoint two or more guardians, who function as joint guardians: and if they do so, the appointment will subsist only for those appointed to serve the guardianship in the order they were appointed, in the case of death, incapacity, excuse or separation of any of them.

Guardianship of a child

The competent Judge, in the same cases, will adopt ex officio the measures that he/she considers necessary, and will bring the fact to the knowledge of the Public Prosecutor’s Office, who will have to request from the Judge what is appropriate, within a period of fifteen days.

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The Judge will hear the next of kin of the presumed incapable person, will examine him by himself, will hear the opinion of a medical doctor and, without prejudice to the tests practiced at the request of a party, will be able to decree, ex officio, as many as he deems pertinent.

The internment of a presumed incompetent person will require the previous judicial authorization, unless, reasons of urgency made necessary the immediate adoption of such a measure, of which the Judge will be informed as soon as possible, and, in any case, within the term of twenty-four hours.

The judge, after examining the person and hearing the opinion of a physician appointed by him, shall grant or deny the authorization and shall inform the Public Prosecutor’s Office of the facts, for the purposes provided for in Article 203.

Without prejudice to the provisions of Article 269, 4.º, the Judge, of his own motion, shall request information on the need to continue the internment, when he deems it appropriate, and, in any case, every six months, in the same manner as provided for in the preceding paragraph, and shall agree on whether or not to continue the internment.

Testamentary Guardianship

The purpose of this contribution is to analyze the essential procedural aspects of guardianship, whether it involves a general guardianship or a special guardianship. Likewise, the generalities of the institute of guardianship, the different classes, its discernment, and its completion or culmination in the Civil and Commercial Code of the Nation (CCivCom) will be externalized.

It is necessary to emphasize that, in the new unified civil and commercial code, guardianship is provided for in Book I (General Part), Title I (Human Person), Chapter 10 (Representation and assistance. Guardianship and curatorship), Section 2.a (Guardianship), and regulated in Sections 104 to 137 of the CCivCom.

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In our current legal system, guardianship is intended to provide protection to the person and property of children and adolescents who have not reached their full civil capacity when there is no one to exercise parental responsibility (art. 104, para. 1°, of the CCivCom).

Thus, the representation of children and adolescents is established through the institute of guardianship and its two different types (general and special guardianship) by means of which the defense of their rights is guaranteed, while ensuring their participation in the different acts of civil life established by law.

Proxy guardianship

Article 4. Interpretation of the rights protected. The rights protected by the tutela action shall be interpreted in accordance with the international treaties on human rights ratified by Colombia.

1. When there are other remedies or means of judicial defense, unless it is used as a transitory mechanism to avoid irremediable damage. The existence of such means shall be assessed specifically, as to their effectiveness, taking into account the circumstances in which the applicant finds himself/herself.

3. When it is intended to protect collective rights, such as peace and the others mentioned in Article 88 of the Political Constitution. The foregoing does not prevent the holder from requesting the protection of his threatened or violated rights in situations that compromise collective interests or rights, provided that it is to prevent irremediable damage.

Article 7. Provisional measures to protect a right. From the filing of the request, when the judge expressly deems it necessary and urgent to protect the right, he will suspend the application of the specific act that threatens or violates it.

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