Guardianship in Family Law: Protection and Future Planning

Introduction

The concern for the well-being and future of children is a constant in parents' lives. However, few reflect on what would happen to their minor children if they were to pass away or become unable to exercise parental authority. Guardianship is the legal mechanism that ensures the protection of minors in such situations, guaranteeing the appointment of a legal guardian to manage their assets and take care of their education and sustenance.

This topic gained prominence with the case of journalist Glória Maria, who, anticipating the possibility of her absence, designated the guardians of her daughters in her will. This decision highlights the importance of guardianship not only as a protective measure but also as a relevant estate planning tool.

What is Guardianship?

Guardianship is an institution provided for in Articles 1,728 to 1,766 of the Brazilian Civil Code, with the primary objective of ensuring the protection of a child or adolescent in the absence of their parents. It is necessary in cases of:

✅ Parental death

✅ Judicially declared parental absence

✅ Parental rights termination by court decision

Unlike custody, which can be shared between parents or granted to third parties without the loss of parental authority, guardianship applies only when parents can no longer fulfill their role. In such cases, the guardian assumes full responsibility for the minor and their assets.

Who Can Be Appointed as a Guardian?

Parents have the right to appoint their child’s guardian through a will or another legally valid document, as established in Article 1,729 of the Civil Code. This allows parents to choose a trusted person to assume responsibility for their children in case of their death.

If no designation has been made, the law establishes a priority order for guardianship, as stated in Article 1,731 of the Brazilian Civil Code:

1️⃣ Ascendants – grandparents, with preference for the closest degree of kinship.

2️⃣ Collateral relatives up to the third degree – uncles and older siblings.

3️⃣ Judicial appointment – in the absence of suitable relatives, the court may appoint a guardian who demonstrates the capacity to assume the responsibility.

Additionally, orphaned siblings should, whenever possible, remain under the guardianship of a single guardian to maintain their emotional bonds and prevent additional trauma.

Rights and Duties of the Guardian

The guardian assumes several responsibilities, as outlined in Article 1,740 of the Civil Code, including:

📌 Directing the minor’s education.

📌 Providing for their sustenance and well-being.

📌 Managing their assets responsibly.

📌 Defending their interests and representing them legally.

The management of the minor’s assets must be overseen by the court, which may require periodic financial reports to ensure the proper administration of their inheritance.

Guardians also have rights, such as receiving fair compensation for managing significant assets and reimbursement for justified expenses incurred while fulfilling their duties.

When Does Guardianship End?

Guardianship ceases in the following situations:

✔️ When the minor reaches legal adulthood (18 years old) or becomes emancipated.

✔️ Upon the minor’s adoption, which grants them full family rights and responsibilities.

✔️ If the minor's biological parent claims and legally recognizes the child.

The Importance of Guardianship in Estate Planning

Appointing a guardian in a will is a crucial step in estate planning, demonstrating parental care for their children's future. In Glória Maria’s case, she appointed close friends and her daughters' godparents as guardians, ensuring that, in her absence, her children would be cared for by people she fully trusted.

In addition to testamentary guardianship, the law provides for legitimate guardianship, which applies automatically to the closest relatives if no designation has been made by the parents. However, in many cases, the parents’ preferences may differ from the legal default, making it essential to formalize this choice in advance.

Guardianship may also be shared, allowing more than one person to jointly assume responsibility for the minor. This option provides greater security for the child and ensures that their care is not left to a single individual.

Conclusion

Guardianship is a fundamental legal mechanism for protecting children and adolescents who lose their parents or whose parental rights have been terminated. It ensures that a legally appointed guardian will be responsible for the child's upbringing, sustenance, and asset management.

To avoid uncertainties and family disputes, it is recommended that parents designate their children's guardians through a will or another legally valid document. This estate planning decision provides legal and emotional security for children, ensuring they will be cared for by individuals chosen based on trust and affection.

Family Law, by regulating guardianship, reinforces the importance of protecting childhood and adolescence, ensuring that even in the absence of parents, minors have a stable and secure family structure. Therefore, reflecting on this topic and seeking legal advice are prudent measures for any responsible parent who wishes to safeguard their child’s future.

Do you have any questions? Feel free to contact me—I am available to assist you throughout this process!

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