Libro Primero · Título II Capítulo IX. De la tutela

A minor who is not under parental authority shall be subject to guardianship for the care of their person and property. A person who has been declared in a state of interdiction shall also be subject to guardianship even if of legal age, if they have no parents.

The guardian is the legal representative of the minor or incapacitated person.

Guardianship is exercised by a tutor and a protutor, whose offices are personal and may not be delegated, but they may grant special mandates for specified acts.

Guardianship and protutorship are public offices to the performance of which all persons who are in full enjoyment of their civil rights are obligated.

Guardianship may be testamentary, statutory and judicial.

Testamentary guardianship is established by will, by the surviving father or mother, for children who are under their parental authority; by the grandfather or grandmother, for grandchildren who are subject to their legitimate guardianship; by any testator, for the person whom he institutes as heir or legatee, if the latter lacks a guardian appointed by the father or mother and a legitimate guardian; and by the adopter who designates his adopted child as heir or legatee.

The parents and the grandparents, as the case may be, may appoint a tutor and a protutor for all or for several of their children or for each one of them. They may also appoint several tutors and protutors to hold the office one in default of another, respectively, in the order of their designation.

The legitimate guardianship of minors corresponds in the following order:

1st. To the paternal grandfather;

2nd. To the maternal grandfather;

3rd. To the paternal grandmother;

4th. To the maternal grandmother; and

5th. To siblings without distinction of sex, preference being given to those who proceed from both lines and among these to the one of greater age and capacity.

The maternal line shall be preferred to the paternal line for the guardianship of children outside marriage. However, where justified grounds exist for varying the precedence, the judge may appoint as tutor the relative who meets the best conditions of knowledge and familiarity with the minor, solvency, suitability and preparation, who constitutes a guarantee for the satisfactory performance of his office.

Judicial guardianship proceeds by appointment of the competent judge, when there is neither a testamentary nor a legitimate guardian. For this purpose, the Public Prosecutor's Office and any capable person must report to the authority the fact giving rise to guardianship not provided for.

For the designation of the person of the guardian, the judge shall take into account the circumstances mentioned in the preceding article.

The guardianship of persons of legal age declared in interdiction corresponds to:

1st. To the spouse;

2nd. To the father and to the mother;

3rd. To the children of legal age; and

4th. To the grandparents, in the order previously established.

If, while a legitimate or judicial guardian is in office, the testamentary guardian should appear, the guardianship shall be transferred immediately to the latter.

Minors who have reached the age of sixteen years, the guardian must associate them in the administration of the property for their information and knowledge; and if they lack a testamentary guardian they shall have the right to propose a candidate from among their relatives called to legitimate guardianship, or in the absence of the latter, a person of recognized honorability to exercise judicial guardianship.

The protutor shall intervene in the functions of the guardianship, to ensure its proper exercise.

The appointment of the protutor shall be made in the same manner as that of the guardian. It may fall upon relatives of the ward or upon other persons, provided they meet the conditions of well-known honesty and established roots.

The protutor is obligated:

1º.To intervene in the inventory and appraisal of the property of the minor and in the qualification and granting of the security that the guardian must provide;

2º.To defend the rights of the minor in judicial proceedings and outside them, whenever they are in opposition to the interests of the guardian;

3º.To promote the appointment of a guardian, when removal of the person exercising it is warranted, or when the guardianship becomes vacant or abandoned;

4º.To intervene in the rendering of accounts by the guardian; and

5º.To exercise the other powers assigned to him by law.

When there is a conflict of interests among several wards subject to the same guardianship, the judge shall appoint specific tutors for them.

While no tutor and protutor have been appointed and the offices have not been conferred, the judge, on its own initiative, or at the request of the Public Prosecutor's Office, shall issue the necessary measures for the care of the person of the minor or incapacitated person and the security of their property.

The directors or superiors of social assistance establishments that take in minors or incapacitated persons are guardians and legal representatives thereof from the moment of their admission, and their office does not require discernment.

Foreigners are not obligated to accept the office of tutor or protutor, except where it concerns their relatives and fellow nationals. Acceptance of such offices does not imply acquisition of Guatemalan nationality.

The discernment of guardianship is governed by the law of the place of domicile of the minor or incapacitated person.

The office of tutor, discerned in a foreign country in accordance with the laws of said country, shall be recognized in the Republic.

Guardianship, as to the rights and obligations it imposes, is governed by the laws of the place where the office was discerned.

The powers of the guardians, with respect to the property that the minor or incapacitated person may have outside the place of his domicile, shall be exercised in accordance with the law of the place in which such property is situated.

The provisions relating to guardians shall govern persons who administer property of minors or incapacitated persons, in specific cases.

No one may be tutor or protutor:

1º.A minor and an incapacitated person;

2º.One who has been convicted of robbery, theft, fraud, falsity, misdemeanors and crimes against honesty, or other common crimes punishable by a penalty of more than two years;

3º.One who has been removed from another guardianship, or has not rendered accounts of his administration, or, having rendered them, they have not been approved;

4º.A habitual drunkard, one who habitually uses narcotics, a vagrant and one of notorious bad conduct;

5º.A bankrupt or insolvent person, while he has not obtained his rehabilitation;

6º.One who has pending litigation of his own or of his ascendants, descendants or spouses, with the minor or incapacitated person;

7º.One who has lost the exercise of parental authority or the administration of his children's property;

8º.The creditor or debtor of the minor for an appreciable amount in relation to the minor's property, in the judge's opinion, unless with knowledge of the facts he has been appointed by will;

9º.One who does not have domicile in the Republic; and

10.A blind person and one who suffers from a serious, incurable or contagious disease.

Tutors or protutors who subsequently incur any of the incapacities mentioned in the preceding article shall be removed from their office by judicial declaration, upon prior complaint and verification of the fact by the Public Prosecutor's Office or any relative of the ward.

They shall also be removed from guardianship and protutorship:

1º.Those who show negligence, ineptitude or infidelity in the performance of the office;

2º.Those who incite the ward to corruption or to crime;

3º.Those who inflict mistreatment upon the minor;

4º.Those who knowingly have committed inaccuracy in the Inventory, omitting property or active or passive credits; and

5º.Those who absent themselves for more than six months from the place where they perform the guardianship and protutorship.

May be excused from guardianship and protutorship:

1º.Those who have another guardianship or protutorship in their charge;

2º.Those over sixty years of age;

3º.Those who have three or more children under their parental authority;

4º.Women;

5º.Those who, due to their limited resources, cannot attend to the office without detriment to their subsistence;

6º.Those who suffer from a habitual illness that prevents them from fulfilling the duties of their office; and

7º.Those who must absent themselves from the Republic for more than one year.

Those who are not relatives of the minor or incapacitated person shall not be obliged to accept guardianship or protutorship if there are persons called by law who have no excuse or impediments to exercise such offices.

The tutor and the protutor shall not enter upon the exercise of their offices, except after having been discerned by the judge.

No guardianship may be discerned without all the requirements required by law for its exercise having been fulfilled.

In duly justified urgent cases, the judge shall order that a delegate of the Office of the Attorney General of the Nation be designated to act in representation and protection of the rights and best interests of girls, boys and adolescents, while a tutor is appointed, to claim or defend their rights or those of a person who has been declared in a state of interdiction, both in the judicial and administrative spheres, in congruence with and without prejudice to the provisions of Article 108 of the Law on the Comprehensive Protection of Children and Adolescents, Decree Number 27-2003 of the Congress of the Republic.

The guardian shall proceed to the inventory and appraisal of the property of the minor or incapacitated person, within the thirty days following acceptance of the office, which time limit may be prudentially restricted or extended by the judge, according to the circumstances.

In no case, not even by provision of the testator, shall the guardian be exempted from this obligation.

Once the inventory has been taken, the tutor and the protutor remain jointly and severally obligated to promote the establishment of the security, unless there is no property, or, in the case of a testamentary tutor, he has been relieved of this obligation by the testator, with respect to the property that is the subject of the inheritance, donation or legacy.

When, after the discernment of the guardianship, a cause arises or is discovered that makes the security mandatory, the guardian himself or the protutor, or the Public Prosecutor's Office, shall inform the judge thereof, for the purpose of establishing the guarantee.

The guarantee shall secure:

1.The amount of the movable property received by the guardian;

2.The average income from the property in the last three years prior to the guardianship; and

3.The profits that the ward may receive during one year from any enterprise.

The guarantee shall be increased or decreased as the value of the stated property and that of the things in which it is constituted increases or decreases.

The guarantee shall consist of a mortgage, pledge or bond granted by a banking institution or one legally authorized for that purpose. The personal guarantee and even sworn security may be admitted by the judge when, in his judgment, they are sufficient, taking into account the value of the property to be administered by the guardian and the solvency and good reputation of the latter.

The pledge guarantee furnished by the guardian shall be constituted by depositing the instruments or securities in a credit institution authorized to receive deposits; and in the absence thereof, with a person of well-known standing and financial solvency.

The judge shall fix, at the request and proposal of the tutor, the maintenance allowance, in accordance with the inventory and the circumstances of the ward, without prejudice to altering it, according to the increase or decrease of the patrimony and other grounds that the tribunal shall assess.

The tutor, within the first month of exercising his office, shall submit the budget of administration expenses for the year to the judge for approval.

For extraordinary expenses exceeding five hundred quetzales, the tutor needs judicial authorization.

The jewelry, precious movables, public securities, bonds, shares and securities that, in the judgment of the judge, should not remain in the possession of the guardian shall be deposited in an establishment authorized by law to receive deposits.

The guardian shall assign the minor to the career, trade or profession that the latter chooses, according to the minor's circumstances. If the minor had already begun any of these activities during parental authority, the guardian may not vary it without authorization of the judge, for which the aptitudes and circumstances of the minor shall be taken into account.

The ward owes respect and obedience to the guardian. The latter has, with respect to the former, the powers of the parents, with the limitations established by law.

The guardian needs judicial authorization:

1º.To alienate or encumber immovable property or real rights of the minor or incapacitated person; to lease the former for more than three years, or with advance rent for more than one year; to make or recognize improvements that are not necessary; to constitute passive easements; and in general, to enter into any other class of contracts affecting the patrimony of the ward, provided they exceed five hundred quetzales.

The contracts referred to in this paragraph may not be extended;

2º.To take money as a mutuum loan, subject to the conditions and guarantees agreed by the judge;

3º.To repudiate inheritances, legacies and donations;

4º.To settle or submit to arbitrators the matters in which the ward has an interest;

5º.To obtain payment of the claims he holds against the minor or incapacitated person; and

6º.To determine the form, conditions and guarantees under which the ward's money must be placed.

The sale of commercial or industrial securities, income securities, shares, bonds, produce and livestock may be made extrajudicially, but never for less than the value quoted in the market on the day of the sale, which the guardian must prove when rendering his accounts.

The tutor is liable for the legal interest on the ward's capital when, through his omission or negligence, it remains unproductive or uninvested.

The guardian may not, without judicial authorization, liquidate the business that forms part of the minor's estate or change the trade or industry to which the latter or his predecessors had been engaged.

The following acts are prohibited to the guardian:

1º.To contract for himself or through an interposed person, with the minor or incapacitated person, or to accept credits, rights or actions against him, unless they result from legal subrogation;

2º.To dispose by gratuitous title of the property of the minor or incapacitated person;

3º.To accept donations from the former ward, without the accounts of his administration having been approved and settled, except when the guardian is an ascendant, spouse or sibling of the donor;

4º.To make voluntary remission of rights of the minor or incapacitated person; and

5º.To accept the designation as beneficiary in insurance in his favor, originating from his ward.

Nor may the relatives of the guardian contract with respect to the property of the minor or incapacitated person, either on their own behalf or through an interposed person, unless they are co-heirs or co-participants of the ward.

The guardian may not acknowledge children of the ward, except with the express consent of the latter and in no case those of the incapacitated person, nor expressly or tacitly consent to decisions unfavorable to the ward.

During the exercise of the guardianship, the protutor is obliged to defend the rights of the minor in court and out of court, when they are in opposition to the interests of the tutor; and to promote the appointment of a new guardian, when removal of the person currently holding the office is appropriate, or when the guardianship is left vacant or abandoned.

Guardianship and protutorship give the right to remuneration that shall be paid annually and that shall be no less than five nor exceed fifteen percent annually of the net rents and proceeds of the ward's property.

When the remuneration has not been fixed in the will, or when, absent negligence on the part of the guardian, there are no rents or net proceeds, the judge shall fix it, taking into account the importance of the ward's estate and the work entailed by the exercise of guardianship. The remuneration shall be distributed between the guardian and the protutor, seventy-five percent corresponding to the former and the remaining twenty-five percent to the latter.

When the tutor and the protutor have been removed through their fault, they shall have no right to receive any remuneration.

The guardian is obligated to keep documented and accurate accounting of all operations of his administration, in authorized books, even when the testator has exempted him from rendering accounts. At the end of his office, he shall present a report summarizing the acts carried out.

The guardian shall render accounts annually and upon conclusion of the guardianship or upon ceasing in his office.

The annual rendering of accounts shall be made before the judge with the intervention of the protutor and of the Public Prosecutor's Office.

The final accounting shall be rendered by the guardian or his heirs, to the former ward or to whoever represents him, within sixty days counted from the termination of the exercise of the guardianship.

The guardian who replaces another is obligated to demand delivery of property and the rendering of accounts from the one who preceded him. If he fails to do so, he is liable for the damage and losses that as a result of his omission ensue to the ward.

The accounts must be accompanied by their supporting documents. Only verification of expenses for which it is not customary to collect a receipt may be excused.

The expenses of the rendering of accounts shall be borne by the minor or incapacitated person.

The guardian, upon conclusion of the guardianship, is obligated to deliver to the person who was their ward, all the property and documents belonging to them.

This obligation is not suspended while the rendering of accounts is pending.

The balance of the accounts resulting in favor of or against the guardian shall bear legal interest.

In the first case, from the time the ward is required to make payment, following prior delivery of the property; in the second, from the rendering of accounts, if they were rendered within the legal term, and otherwise, from the expiration thereof.

The actions or obligations reciprocally corresponding to the guardian and the former ward, by reason of the exercise of the guardianship, are extinguished five years after its conclusion.