RURAL UNIVERSITY OF GUATEMALA

SEDE 44 ESQUIPULAS
Legal and Social Sciences
Family Procedural Law
Lic. Barbara Galindo

VOLUNTARY JURISDICTION
THE GUARDIANSHIP AND PROTECTION IN GUATEMALA

Yolanda Suriano Buezo

Meat: 011-044-0082

Esquipulas, March 8, 2015.

Content
1. INTRODUCTIONN................................................................................................................. 3
2. PROTECTION Y PROTECTION IN GUATEMALA
3. Definition .......................................................................................................................... 4
4. Classes of guardianship

5. Characteristics ................................................................................................................... 6
6. Provisional protection 6
The current procedure of the guardianship in Guatemala ....................................................... 7
8. Requirements General Guidelines for Guardianship and Pro-Guardianshipa ...................................................................... 8

9. SCHEME GENERAL OF THE TUTELA AND PROTUTELA PROCEDURE IN GUATEMALA............... 9

10. CONCLUSIONS ........................................................................................................... 10
11. EGRAFÍA....................................................................................................................... 11
 1. INTRODUCTION

In the present research, guardianship is defined according to doctrine and also in accordance with
our legislation.

As is well known, the function of guardianship is mainly protective due to one's age or for
under certain physical circumstances, she cannot fend for herself and is not under the guardianship
power.

There are several types of guardianship: legitimate, testamentary, legal, judicial, specific and
special, which are determined in this research.

The position of protutor is closely linked to that of tutor. The Law oversees with it the correct
exercise of guardianship.

In section five of this research, the characteristics of the guardianship are presented.
in addition to the current procedure for the tutela in Guatemala, in paragraph seven.

The general requirements for guardianship and provisional guardianship are described in paragraph eight, including a
procedure outline.
 2. CUSTODY AND PROVISIONAL CUSTODY IN GUATEMALA

The word tutelage derives from the Latin word tueor, which means to defend, to protect. Tutelary by
so it means to care, to protect and this is precisely one of the most important missions that
The tutor must fulfill: protect the interests of the pupil, both personal and property.
Thus, it can be said that the role of the tutor is to protect the person who is incapable, striving to
always his rehabilitation and his well-being; and manage his assets in such a way that
maximize its benefits always in favor of the pupil

Guardianship is a supplementary institution to parental authority, through which

which is provided for representation, for protection, for assistance, to
supplement for those who are not sufficient to govern themselves and
rights by themselves, to govern, ultimately, their legal activity.

The guardianship Before determining a doctrinal definition concerning guardianship as

the institution of guardianship and custody needs to be referred to from the legal aspect
Guatemalan, as established in the Guatemalan legal order in Article
293 of Decree Law 106 containing the current civil code "The minor who is not present
Under parental authority, he will be subject to guardianship for the care of his person and his property.
He who has been declared will also be subject to guardianship even if he is of legal age.
in a state of interdiction, if there are no parents. The guardian is the legal representative of the minor or
incapacitated.

It is necessary to emphasize that guardianship as an institution of care and custody of minors

age and those declared legally incapacitated linked to another legal figure that in our
The legal medium is known as protutela, so necessarily when referring to one
links to the other; because the protection becomes a control of effectiveness and integrity in
the performance of the guardianship, the protutor is thus the supervisor of the tutor, which translates into regulations
within the legal framework that implies that in case the guardian exercises
defectively the guardianship or that does not exercise the actions in favor of the ward that as
the tutor is obliged to execute the protutor will do it in their place.

Guardianship as a legal figure that substitutes parental authority in the absence of the latter,
constitutes a custody and safeguarding institution that is very common in our environment,
regulated by law both in its processing and development. The guardianship and other institutions of
legal guardianship has gained greater social importance in recent years due to the
knowledge of public authorities and citizens about the need to
provide appropriate legal attention and protection to incapacitated individuals and to the
minors who are not subject to the parental authority of their parents.

3. Definition
For Diego Espín Canovas: "Guardianship is the institution of protection and custody that replaces parental authority."
power in case of its absence, and as an institution established by the regulation
legal to safeguard the interests of minors or declared incapacitated persons
judicially and ensure the protection of your person and the proper administration of your
goods.

4. Types of guardianship
Decree Law 106, which contains the Civil Code of Guatemala, in Article 296 states: "the
guardianship can be: testamentary, legitimate, and judicial.” It also recognizes the existence
of legal guardianship, special guardianship, and specific guardianship, which are of an exceptional nature.

a) Testamentary: Article 297 of Decree Law 106 states that: 'The guardianship
Testamentary is established by will, by the father or mother.
survivor, for the children under their parental authority; by the grandfather or
the grandmother, for the grandchildren who are under her legal guardianship; for any
tester, for the one who appoints an heir or legatee, if he lacks a guardian
named by the father or mother and by a legal guardian; and by the adopter who
designate heir or legatee to his adopted son." What prevails in this class of
guardianship is the will of the testator, but the testator who legitimately has it
assist such right, and in the absence of parental authority.

b) Legitimate: The same legal body establishes in Article 299 in its part
it is conducive that the legitimate guardianship of minors corresponds in the order
To the paternal grandfather;
4. To the maternal grandmother; and 5. To the siblings, without distinction of sex, being
preferred those coming from both lines and among them the eldest one and
capacity. The maternal line will generally be preferred over the paternal for the
custody of children born out of wedlock.
So it is inferred that legitimate guardianship is granted by virtue of the ties of
relationship that unites the tutor with the pupil; and takes place when it does not exist
testamentary guardianship or when the appointed individuals do not assume the guardianship, or
they cease to be guardians. Likewise, this type of guardianship establishes
It is imperative that relatives can be legitimate guardians.
blood relatives; and it requires suitability, as it states that the judge will confirm or
will grant guardianship to the person who has the greatest solvency and suitable reputation to
exercise it, and the interests of the minor will be taken into account.

c) Judicial: In comparative law specifically in the Argentine Civil Code

we found that judicial guardianship is also known as appointed guardianship,
virtue of being a single judge who grants it. Judicial protection is the
that judges give to those unable or to minors who do not have one assigned.
for their parents and when there are no relatives called to exercise guardianship
legitimate, or when, existing, they are not capable or suitable, or have renounced the
protection or if it has been terminated and is still needed, and does not exist
legitimate tutor or who could be one.
In the Guatemalan legal system regarding this, Decree Law 106,
is provided in Article 300: 'Judicial guardianship proceeds by appointment of the
competent judge, when there is no testamentary or legitimate guardian. For this
effect, the Public Prosecutor's Office and any capable person must report to the
 authority the fact that gives rise to the unprovided guardianship. For the appointment of
the person of the tutor, the judge must take into account the circumstances that are
mentioned in the previous Article." The same legal body establishes in the
Article 301: The guardianship of adults declared incapacitated
corresponds:
To the spouse;
To the father and the mother;
3. To the adult children; and
4. To the grandparents, in the order previously established.

d) Legal The Decree Law 106, in Article 308 states: "The

directors or superiors of social assistance establishments that welcome
minors or incapacitated individuals are their guardians and legal representatives,
From the moment of their entry, and their position does not require discernment.

e) Specific: This type of protection is applicable when there is a conflict of

existing interests among several students who are subject to a
same guardianship, to avoid this conflict the judge will proceed to appoint guardians
specific, the above is stipulated in the legal framework
Guatemalan in Decree Law 106, Article 306. 1.3.6. Special This class of
Tutela is of an extraordinary nature and proceeds according to the provisions of the Decree Law.
106 in Article 268: "If a conflict of interest arises between children subject to the
same parental authority, or between them and the parents, the judge will appoint a guardian
special.

5. Characteristics
The main characteristics of the guardianship institution known as custody are the
next:

• Protective function of minors or incapacitated individuals who are not under guardianship.
any authority.
• Representative function, because it legally represents the pupil in all acts of
civil life.
• Subsidiary authority only appears in the absence or lack of parental authority and with
limitations. • Public office, all persons with full capacity are required by law
deprivation of civil rights, due to protective function.
• Highly personal cargo, it cannot be delegated or transferred by act between living persons nor by
last will without prejudice to granting mandates.
• Subject to state control, it is subject to the norms of the legal order and supervision.
by the competent jurisdictional authority.

6. Provisional protection

It is the legal figure whose purpose is to supervise the administration and attitude of the guardian in
benefit of their pupil and replace them in their absences, assisting the tutor in the exercise
of its powers in favor of the minor or incapacitated person who is under that institution. No
The figure of the tutor can be conceived without that of the protutor, since both institutions of
guardianship and custody are linked, they are charges that are discerned together, and in everything
the guardianship process must be proposed to both the person of the tutor and that of the protutor,
due to the fact that protutela exists as an institution that ensures the proper performance of
the guardianship.

Decree Law 106 Article 294 explicitly states: 'Guardianship is exercised by a guardian and
a protutor, whose positions are personal and cannot be delegated, but can be granted
special mandates for specific acts.” The aforementioned legal body also in Article
304 provides for this matter: 'The pro-tutor will intervene in the functions of the guardianship, to ensure
your straight exercise. The designation of the protutor will be made in the same way as that of the tutor.
It can fall to relatives of the ward or to other people, as long as they meet the conditions of
notorious honesty and rootedness.

The law also establishes obligations for the protutor such as:

• Intervene in the inventory and appraisal of the minor's assets and in the qualification and
granting of the guarantee that the guardian must provide.
• She has to defend the rights of the minor in court and outside of it, as long as they are
in opposition to the interests of the tutor.
• It must promote the appointment of a tutor when the removal of the current one is appropriate.
it was exercising it, or when the guardianship is vacant or abandoned.
• Intervene in the accountability of the tutor, and other powers established by
law.

7. The current process of guardianship in Guatemala

The general procedure in the Guatemalan legal system is due to its significance in
the legal and social framework, as a guardianship institution that supplements parental authority
in case of its absence. The acquisition of guardianship which includes the appointment and
discerning the role of a tutor, as well as the control in the exercise of it and its
termination due to its significance is regulated in the substantive area and
procedural, by Decree Law 106 which contains the Civil Code and Decree Law 107 which
It contains the Civil and Commercial Procedural Code of the legal order of Guatemala.

The process for the appointment and assignment of the position is carried out in
through a process before the competent jurisdictional body that in
this case is a First Instance Judge in the Family Branch, this
the process is voluntary jurisdiction because there is no litis, and it
find in the fourth book regarding special processes due to the
unique characteristics of this type of process.

Decree Law 107 provides in Article 401: 'Voluntary jurisdiction includes all the
acts in which, by law or by request of the interested parties, the requirement is established
intervention of the judge, without any issue being raised or promoted between the parties
determined." If someone who has the right to oppose it objects to the request for the protection order,
the law states that the matter will be declared contentious, so the parties must
to raise an ordinary process to settle the legal dispute. The general process of guardianship.
in voluntary jurisdiction is carried out through a request from the interested party or in the event of
judicial protection through the report that is made of a minor or
incapable is found unprotected, without anyone exercising parental authority over him or her.
If there is no guardian, the law establishes that the application must be made in writing before a judge.
of First Instance; and when it is necessary to give a hearing to someone who
it will be required, you will be notified of it so that you can carry it out within the third day. Likewise, the
Law contemplating the importance of this guardianship institution expressly regulates
the audience to the Attorney General's Office, as it refers to interests of
minors or incapacitated persons.

As established by Decree Law 106 in Article 418: 'Every tutor, protutor, or guardian,
must request from the First Instance Judge the discernment of the charge; and the judge, before
confirm it or discern it, may continue, ex officio, information regarding morality and
aptitudes of the named. Based on the information, the judge will confirm or not the
appointment and shall determine the position, proceeding with the inventory and assessment of the assets, as well as
to the granting of the corresponding guarantees, in accordance with the Civil Code.

8. General Requirements for Guardianship and Pre-Guardianship

a. Initial written request for protection and pre-protection and attached documents
birth certificate of the child, girl or adolescent or adult
declared under guardianship; birth certificates of the guardian and
protutor
b. First resolution declaring the promotion of tutela and protutela
c. Notification of the first resolution
d. Socioeconomic study issued by the social worker assigned to the court
of family, which shall deal with the ward, the guardian, and the protutor
provisional
e. If the child or adolescent is twelve (12) years old or older, they must be heard.
(Articles 5 of Decree 27-2003 of the Congress of the Republic; and 12 of the
Convention on the Rights of the Child
f. Lack of criminal and police records of the tutor and co-tutor
g. Minutes of the discernment of the position of tutor and protutor (Art. 319 of the Civil Code)
If it is a case of testamentary guardianship, attach the first testimony of the
public deed of the will, as well as the death certificate of the
parents of the child, girl, or adolescent or of the adult declared incapacitated
of interdiction (Art. 297 Civil Code)
If it concerns legitimate guardianship, the kinship with the child must be proven.
girl or adolescent (Art. 299 of the Civil Code)
j. Inventory and appraisal if the child, girl, or adolescent or adult declared
under interdiction shall have them (Art. 320 of the Civil Code)
k. Pronouncement of the tutor and pro-tutor
Resolution granting a hearing to the Attorney General's Office
 9. GENERAL SCHEME OF THE TUTELAGE AND PROTUTELAGE PROCESS IN
GUATEMALA
Decree Law 106, Civil and Commercial Procedural Code, Articles 401 to 405, 418, and 419
 10. conclusions

Guardianship as a legal figure that substitutes parental authority in case of its absence,
it constitutes a very common custody and guardianship institution in our environment,
regulated by law both in its processing and development.

The main characteristics of the guardianship institution known as tutela are

protective function, representative, subsidiary, public office and personal position

The general requirements for guardianship and pre-guardianship are the initial written document, the first resolution,

notification, socioeconomic study, if over 12 years old they must be heard, lack of
criminal and police records, act of discernment, (if it concerns testamentary guardianship,
attach the first testimony of the public deed, death certificate, if it is about
legitimate guardianship, establish the relationship), inventory and appraisal, pronouncement of the guardian and
prosecutor, resolution granting a hearing to the Attorney General's Office.
 11. EGRAFIY

• Franco Porres, Ludim Noemí. University of San Carlos of Guatemala, Faculty of

Legal and Social Sciences. Thesis: NEED TO ESTABLISH A NEW PROCEDURE
FOR THE SUBSTANTIATION OF THE TUTELA AND PROTUTELA PROCESS IN THE
Guatemalan legal system regulating said procedure
NOTARILY. 2007. Query electronics
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