What is guardianship?

Opening up of guardianship

Guardianship of a minor falls open if both parents (Art. 389, 1st paragraph old Civil Code):

• are deceased;
• are legally unkown;
• are in the constant impossibility of exercising parental authority;
• are legally incapacitated.

Thus, as long as there is one parent alive (and they are not in the constant impossibility to exercise parental authority or incapacitated), the guardianship will not automatically become vacant. 

In addition, only the parent, who last exercised parental authority, can appoint a guardian. This can be done through a will or a declaration before the justice of the peace or a notary. A guardian can also be appointed by the parents together, which remains valid after the death of one of the parents. Unless the surviving parent revokes this or appoints someone else. This can only be done by a declaration before the justice of the peace or a notary (art. 392 old Civil Code). 

The justice of peace

The justice of the peace has a central role in the context of guardianship. The authorised justice of the peace is that of the minor's place of residence or domicile. The justice of the peace where the guardianship is opened is unchangeable (art. 390 old Civil Code).

When guardianship becomes vacant, the justice of the peace will order urgent measures to protect both the child's person and property (art. 391 old Civil Code). 

If the parents had appointed someone as guardian, the justice of the peace, after acceptance by the person, will homologate the designation. Unless there are serious indications, regarding the child, that exclude the designation. If the justice of the peace decides not to appoint the person, he must precisely describe the reasons in his order (art. 392, 7th paragraph old Civil Code). 

If the parents have not appointed anyone as guardian, the justice of the peace will appoint a person. In most cases, this will be a close relative of the child. In case of siblings, the justice of the peace will appoint the same guardian for all children, if possible (art. 393 old Civil Code).

Before the justice of the peace appoints a guardian, he will first hear the minor if he has reached the age of 12. He will also hear the second-degree ascendant relatives, such as the child's siblings and the parents' siblings. In addition, he will also hear any person whose opinion may be useful to him (art. 394 old Civil Code). 

In exceptional cases, the justice of the peace may split the guardianship. In doing so, he will appoint a guardian for the person of the child and a guardian over the property (art. 395, §1 old Civil Code).

Supervising guardian

For each guardianship, the justice of the peace will also appoint a supervising guardian. If the guardian is a relative by blood or marriage from one line, the supervising guardian will preferably be chosen from another line (art. 402 old Civil Code).

The supervising guardian is there to supervise the guardian. If he observes that the guardian is failing in his duties towards the child, he must immediately inform the justice of the peace (art. 403 old Civil Code).

In addition, the supervising guardian represents the minor when its interests clash with those of the guardian. If the interests of the supervising guardian would also clash with those of the child, the justice of the peace will appoint an ad hoc guardian and ad hoc supervising guardian (art. 404, 1st paragraph old Civil Code).

Obligations during guardianship

First of all, no one is obliged to assume guardianship (art. 396 old Civil Code). If someone decides to accept guardianship, this also entails a number of obligations.

First, the guardian must take care of the person of the child, as well as be responsible for its upbringing. If the parents have left certain wishes in this regard, the guardian must follow them (art. 405, 1st paragraph old Civil Code).

Secondly, he will represent the child in all civil acts. Thus, he can give permission for certain decisions related to the child's person, such as e.g. giving permission so that the minor can get married (art. 405, 2nd paragraph old Civil Code).

Lastly, he is responsible for managing the child's assets. This he must do like a good family father, otherwise he can be held liable for bad management (art. 405, 3rd paragraph old Civil Code).

For certain acts, the guardian will also have to obtain prior authorisation from the justice of the peace, these acts are listed in art. 410 old Civil Code.

The costs of maintenance and upbringing must be borne by the child's own income, not by the guardian (art. 405, 5th paragraph old Civil Code). The guardianship in itself is unpaid. However, the guardian can ask for a compensation for any expenses. 

In addition, the guardian must report annually. Any asset management the guardian must justify in the form of an annual guardianship account. He must also report on the child's upbringing and care. By means of these accounts, there is visibility and control over the guardianship (art. 413 and 420 old Civil Code). 

Excluded from guardianship

The following persons may not be appointed as guardians (Art. 397 old Civil Code):

• persons who do not have free disposal of their property; 
• persons in respect of whom the juvenile court has ordered one of the measures, pursuant to sections 29-32 of the Youth Protection Act.

Furthermore, certain persons are excluded from guardianship or can be disqualified if they already exercise guardianship. These are (art. 398 old Civil Code): 

• persons of apparant misconduct;
• persons whose management demonstrates incompetence or infidelity;
• persons who themselves or whose spouse, legal/factual cohabiting partner, a blood relative in the ascending or descending line are bringing legal proceedings against a minor, involving the minor's state, property or substantial part of its assets.

End of guardianship

Guardianship comes to an end on:

• the deadth of the child;
• the coming of age of the child;
• the emancipation of the child;
• the adoption of the child;
• the establishment of original parentage in respect of a parent;
• the dissolution of the constant impossibility of the parent(s).