Certain considerations regarding the protection of a capable natural person through guardianship in the light of New Romanian Civil Code

One of the measures employed to protect an individual is guardianship. Legal norms treat guardianship aimed at protecting a person with full capacity of exercise in certain special situations in a different way than they do guardianship for minors or persons placed under interdiction. While guardianship for capable persons is governed by the rules of mandate, guardianship for minors and persons placed under judicial interdiction are subject to rules applicable to custody for minors (art. 171 of the New Civil Code). As follows, we shall analyse the legal provisions established by the New Civil Code in the case of guardianship for capable persons, emphasising novelty elements as compared to the previous regulation. 1. Introduction The protective measures for major natural persons are, within the meaning of art. 106 para. (2) of the Civil Code, placement under judicial interdiction and guardianship. In the absence of adequate protective measures for individuals who are unable to care for their own person and assets, and who, at the same time, do not qualify for being placed under judicial interdiction, as they are endowed with discernment, even temporarily, the institution of guardianship is employed. Guardianship constitutes the temporary and subsidiary means of protection for capable individuals who, being under certain special circumstances, foreseen by law, cannot pursue their own interests [1]. This protective measure is addressed [2] by Chapter IV (art. 178-186) of Title III entitled "Protection of individuals" in Book I of the New Civil Code, but it is also referred in certain articles of Chapter I of the same title, as well as in some provisions of the current Code of Civil Procedure, e.g. art. 58 on special guardianship. Historically, it can be noted that the institution of guardianship dates back to Roman law. During this period, the Law of the Twelve Tables covered the guardianship of the mentally incapable (in this Act the mentally incapable...