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Duties of guardians
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Side by side within this topic Duties of Parents and Guardians
Slater, Manual of Moral Theology
Vol. I, Bk. VI, Pt. IV, Chapter III. Duties of Relatives and Guardians
Guardians are sometimes appointed according to law to take care of the person and property of minors.
Parents are legally the guardians by nature and nurture of the persons of their children until these reach the age of twenty-one, as we saw above.
Of the many kinds of guardians recognized by English law the following are still of practical importance: Statutory guardians, guardians appointed by the high court and guardians appointed for special purposes.
(a) Statutory guardians. By a statute of Charles II a father may appoint by deed or by will a guardian or guardians to have the custody of his infant child, and to manage its property until it reach the age of twenty-one. The Guardianship of Infants Act, 1886, made the mother on the death of the father the guardian of her infant children, either alone if no guardian was appointed by him, or jointly with the guardian or guardians appointed by the father. The mother can also by deed or will appoint one or more guardians to act after her death and that of the father. She may also appoint a guardian to act provisionally after her death jointly with the father.
(b) Guardians appointed by the High Court. An infant may be made a ward of court by settling a sum of money on it and bringing a suit for its administration. 183 This may be done even though the father be still alive, or a testamentary guardian has been appointed. Where the court is satisfied that it would be for the good of the ward, it may remove a guardian from his office and appoint another in his place, even though the infant be not a ward of court.
(c) Guardians for special purposes are sometimes appointed to consent to an infant’s marriage, or for some other object under different statutes.
A guardian has a right to the custody of the person of his ward, and in general he exercises the rights, and is under the obligations of a father towards his ward. He administers the ward’s property, and must render an account of his administration.
No one may marry a ward of court or remove it out of the jurisdiction without the court’s permission.
The wishes of the father, as a general rule, according to English law, must be followed with regard to the religion in which a ward is educated by his guardian.
Wouters, Manual of Moral Theology
Vol. I, Bk. II, Tr. II, Diss. I, Pt. II, Sect. II, Ch. IV, Article II. On Irritation
VII. The effect of irritation is that the vow is entirely extinguished, so that in no case does the obligation afterward revive (can. 1312, § 1).
Corollary. The following can irritate vows:
- A father can irritate vows emitted by prepubescent children, provided that when they become pubescent they have not confirmed them while aware of the infirmity of the prior vow. If, unaware of the infirmity, they confirm them, strictly speaking they only renew the vow as it was; but it was infirm or irritatable. The aforesaid power also belongs to him who, either by law (as a tutor), or by the father's disposition, is substituted in his place. The reason is that, because of the weakness of prepubescents, power over their will, that is, dominative power, must be judged to belong to the father and to the others enumerated. But dominative power, by can. 1312, § 1, has annexed to it the power of irritating vows (St. Alphonsus, III, 229, 238; cf. St. Thomas, II-II, q. 88, a. 9).
It is disputed whether a father can irritate vows emitted by pubescent minors. Now the matter seems wholly doubtful, because the father's dominative power over pubescent minors is not proved. Nor is can. 89, which declares: "A minor person remains subject to the power of parents or guardians in the exercise of his rights, except in those things in which the law holds minors exempt from power"; nor is the cited canon, I say, judged to settle the question or theoretical controversy whether or not the father enjoys dominative power over pubescent minors.
Corollary. In doubt whether a vow was emitted before or after puberty, the power of irritating is doubtful, because it is doubtful whether the vow was emitted at a time when it was certainly subject to irritation.
The mother seems able to do the same as the father, provided he does not contradict, or with dependence on the father. The reason is that dominative power seems to belong to the mother as much as to the father, because she is the principle of the child no less than the father. Once dominative power is admitted, the power of irritating vows also must be admitted (St. Thomas, opusc. 17, cap. 13, vers. Decimo; St. Alphonsus, Homo Apostolicus, tr. 5, n. 36).
The husband seems to have the power of irritating the vows of the wife, because he seems to enjoy dominative power over her; for such power of itself is very expedient for the good of conjugal society, that is, for fostering dependence and intense love, for restraining the wife's impulses of mind, and for favoring the peace of the family. But dominative power carries with it the power of irritating vows (cf. St. Thomas, II-II, q. 88, a. 8, ad 3; St. Alphonsus, III, 324).1
Superiors of religious, both exempt and non-exempt, both solemnly and simply professed, and likewise Superioresses, can directly irritate vows emitted by subjects during the time in which they were subject to themselves or to other Superiors, for example to a predecessor (can. 501, § 1). The power does not extend: 1. to substantial religious vows, for since these are constitutive of subjection, they are emitted independently of this subjection, and therefore cannot be called infirm or irritatable; 2. to vows annexed to the substantial vows, because since they are emitted together with the substantial vows, they likewise are judged to have been made independently of subjection. They also except the vow of passing to a stricter Religion2 (St. Alphonsus, III, 233; IV, 53, 54).
What has been said about Superiors of religious should also be applied: 1. to the Pope with respect to professed male and female religious (cf. can. 499, § 1); 2. to Chapters of religious according to the norm of the constitutions and common law (cf. can. 501, § 1); 3. to the Bishop, if it is a question of a religion of diocesan right.
A Superior cannot irritate the vows of novices unless, according to the things said under I, he truly supplies the place of a parent, and it is a question of a vow which a parent could irritate (St. Alphonsus, IV, 55). Nor does the faculty of irritating the vows of novices or other faithful belong to the Supreme Pontiff, because he lacks dominative power over them.
Question. Whether the Church supplies probable power of irritating vows.
Response. We judge that it must be denied. For the power of irritating vows supposes dominative power; if this is present, the Church certainly completes it; if it is not present, it cannot be completed.
Corollary. Those who enjoy the power of irritating vows can also in advance render subjects incapable of vowing, either in some matter or universally, so that vows from that time are null from the beginning (St. Alphonsus, III, 228).
1 Cf. Num. 30:7-13; Eph. 5:24.
2 Cap. 18, de Reg.
McHugh–Callan, Moral Theology
Vol. II, Pt. II, Q. IV, Art. 2. Baptism; Confirmat…, Duties of Parents and Guardians
Duties of Parents and Guardians in Reference to Baptism
Duties of Parents and Guardians in Reference to Baptism.—(a) As to Administration of Baptism.—Parents are obliged under grave sin not to expose their children to the loss of salvation by undue delay of Baptism (see 2344, 2630). If there is danger of death, a child must be baptized at once; if there is no immediate danger of death, the child must nevertheless, on account of the absolute necessity of Baptism, be baptized as soon as possible. Some moralists consider a needless delay gravely sinful if it exceeds three or four days; others, if it exceeds ten or eleven days. Since infants can be baptized in the womb, a mother is not obliged to undergo the Caesarean operation to ensure Baptism; but she may permit the operation for the sake of a more certain Baptism, unless her obligations to husband or other children will suffer on account of the danger to her life. If a mother dies in pregnancy, the fetus should be extracted and baptized. The duty here rests with the relatives and the physician (Canon 746).
(b) As to Details of Baptism.—Parents should choose suitable names for their children, avoiding such as are obscene, ridiculous, or impious. It is advisable that the name of a Saint or of some other person distinguished for holiness be chosen, for this will be of a spiritual advantage to the child and an edification to others. Parents have the right to appoint the sponsors of their infant children, and should choose only those who are canonically admissible. If Baptism has been administered at home, the parents should, if the child survives, bring it as soon as possible to the church for conditional Baptism, or for the baptismal ceremonies (Canons 759, 760).
Bucceroni, Commentaries (1910)
Bucceroni, Commentaries (1910), Third Commentary: On the F…, IX. Obligations of Blood-Relations and Tutors
- What are the offices of tutor and curator? - The tutor has care of the person of the minor, and of his education, especially religious education, and he represents him in civil acts, and merely administers his goods. C. I. 277-296, 318; C. G. 450-457, 458; C. H. 261 seqq.; C. A. 188, 205, 216, 243; C. B. 1793, 1801 seqq.; C. L. 269 seqq., 258 seqq. Hence he cannot exceed the limits of administration. C. I. 296 seqq., 301; C. G. 456 seqq., 482; C. A. 229, 248; C. L. 269, 275; C. B. 1804, 1831. - The curator furnishes assistance and authority to him who is under his care. C. I. 318, 339, 342. - Therefore the power of tutor and curator is confined within definite limits, and in any matter of graver moment depends on the family council and even on the homologation, or confirmation, of the tribunal. C. I. 296, 297, 301; C. G. 457-1407; C. H. 269 seqq., 293 seqq.; C. A. 216, 222, 263 seqq.; C. B. 1821 seqq.; C. L. 74 seqq., 263 seqq.
Therefore both tutor and curator are bound to employ great fidelity in their own office, as a good father of a family, and if they fail gravely in fulfilling it, they sin gravely, even against justice by force of quasi-contract, and are bound to compensation of damages. C. I. 277, 302; C. G. 450, 469; C. A. 209, 210, 243; C. B. 1805, 1833, 1948; C. L. 220 seqq.; L. 341, 391, 918.
The tutor, unless he is the paternal or maternal grandfather, must give caution, from which, however, the family council can dispense him. C. I. 292. Cf. C. B. 1844; C. H. 252 seqq. From C. A. the tutor is not obligated to caution. Besides, at the beginning of the tutela he must draw up the state and inventory of the minor's goods. C. I. 281; C. G. 451; C. A. 222, 223, 224; C. H. 262; C. B. 1802.
Each year, while the tutela endures, unless he is the paternal or maternal grandfather, he must render an account of his administration to the family council, C. I. 303; or to the subrogated tutor, C. G. 470; or to the pupillary judge, C. A. 238, 239. Cf. C. H. 279 seqq.; C. B. 1837 seqq.; C. L. 249 seqq. - When the tutela has been completed, he is likewise bound to render an account of his administration, C. I. 302; C. G. 469; C. H. 281; C. B. 1890, and he is liable for less diligent administration, unless he is freed by legitimate prescription. C. I. 303; C. H. 287; C. B. 1835. - Inst. l. 1, t. 21.
- Note: A tutor, or protutor, cannot buy or rent the goods of the minor, nor can he accept a cession of the minor's rights. No convention can be made between the tutor and the minor, nor can any testamentary disposition useful to him be made, before the account of the tutela has been rendered and approved. - Yet he has a right to compensation of expenses made by reason of the tutela, and to a suitable remuneration of his office. - C. I. 300, 307, 769, 1457; C. G. 156, 450, 472; C. H. 269, 270, 978, 975, 276, 285, 755, 571; C. A. 266, 271; C. B. 1785, 1789, 1805, 1834-1836; C. L. 272, 353 seqq.; L. 917.
A tutor or curator cannot make gratuitous donations or remissions from the goods of the pupil; he is constituted not for destroying, but for protecting. Except a remunerative donation; for thus he can, for example, add something to the stipend owed for liberal service, by a liberal donation. - Lugo, d. 23, s. 10, n. 12; L. 341; C. H. 275; C. B. 1804.
- What are the obligations of the minor? - The tutor is in place of the father. Hence the obligations of minors toward him are similar to those which would be owed to the father himself. But the obligation of the minor toward the curator is less; nevertheless, as regards the administration of goods he ought to be subject to him, and to bear a grateful mind. Yet the minor, whether toward the curator or toward the tutor, is not obligated so strictly to love, reverence, and obedience as toward parents. For his dependence on them is far less than on parents. - C. L. 280; C. H. 265; C. A. 217.
Bucceroni, Institutions of Moral Theology
Vol. I, On the Fourth Precept of t…, IV. Obligations of Relatives and Tutors
What are tutor and curator; and to whom are they given? - To those who cannot protect themselves and their own, if they are not under paternal power, a tutor or curator is given. C. A. 187; C. B. 1773. Tutor and curator differ from each other: 1. because a tutor is given principally to the person, secondarily to things. But a curator is given either only to things, or principally to things, and only secondarily to the person, at least regularly speaking. C. A. 188, 209; C. B. 1793, 1794, 1909.
They differ because a tutor cannot be given for a certain thing and cause. But a curator can be given for certain things and determined causes. And thus C. I. 980; C. B. 1961, a curator is assigned to an unclaimed inheritance; C. A. 274, 690; C. L. 157; C. B. 1912, a curator is given to the inheritance of future offspring to be born, and to an inheritance when legacies burden it whole and the heir refuses to administer it. C. B. 1911; C. L. 55 seqq., a curator is given to the goods of one absent. C. B. 1913, 1914, a curator is given to the goods of an unknown owner, and to goods coming from public collections when their administrators are lacking.
He who is under tutelage can do absolutely nothing. He who is under care, if he is an emancipated minor, can with the assistance of the curator demand principal sums and pursue judgments, C. I. 318; C. G. 482; if he is a major declared incapable, or deaf-mute or blind from birth, he can do all things with the assistance of the curator. C. I. 339, 340; C. G. 513; C. A. 269, 270.
They differ from Common Law, because a tutor is regularly given to a ward or one below puberty, and to him who is compared to one below puberty. But a curator is given to a minor or pubescent up to the twenty-fifth year of age. Inst. 1, l. 1, tt. 13, 23; Ferraris, v. Tutela, 10 seqq. From More Recent Law, a tutor is given to a non-emancipated minor and to one interdicted from the administration of goods. But a curator is given to a son soon to be born; to a minor called to an inheritance; to an emancipated minor; to a major declared incapable because of infirmity of mind or prodigality; to an absent person; to a deaf-mute, or one blind from birth. C. I. 236, 241, 245, 247, 277, 314, 315, 329, 339, 340; C. G. 389, 393, 405, 450, 482, 505, 509, 513; C. B. 1773, 1893, 1901, 1909-1914; C. L. 55, 65, 317, 337, 349, 356. From C. H. 199, 200 no distinction is had between tutor and curator as to name; but as to the thing it is preserved. For a tutor is given both to the person and goods, and only to goods. Subject to tutelage are non-emancipated minors, the insane, deaf-mutes, prodigals, and the interdicted. Almost the same is had in C. A. 187, 188, 269, 270, 275.
But in any tutelage a protutor must also be chosen, whose role it is to supply the place of the tutor and protect the minor if the minor's good is opposed to the good of the tutor. C. I. 265; C. G. 420; C. H. 201, 234; C. L. 205. Cf. C. A. 211, 215; C. B. 1791, 1799; L. 917; C. L. 187 seqq.
Who designates a tutor; who can be tutors? - R. To the first: The following can give a tutor: The parent who dies last, either by testament or by public instrument, C. I. 242; cf. C. A. 196, 197; C. H. 206; the family Council, if the parent did not designate and those whom the law designates are lacking, C. I. 245; cf. C. A. 198, 199; C. H. 204, 211, 212, 231; the council of tutelage and the judge in certain cases, C. I. 248, 261, 262; C. A. 189, 190, 199, 204. The family Council is constituted for legitimate children; the Council of tutelage for acknowledged illegitimate children. C. I. 249, 261; C. B. 1774 seqq., 1852 seqq., 1858 seqq.; C. L. 203.
R. To the second: Since the tutelage of minors is a public office, filled with many cares, not all can assume it, nor can all reject it or ought they to; but only persons capable by law and designated by law. C. I. 268 seqq.; C. G. 427 seqq.; C. H. 202, 203, 237 seqq., 244 seqq.; C. A. 191 seqq., 201; C. L. 186 seqq. Tutelage and care by law belongs to the spouse, father, mother, paternal grandfather, maternal grandfather, C. I. 315, 330; C. G. 402 seqq.; C. B. 1776, and, these being lacking, to the nearer blood-relatives. C. A. 198. Cf. C. L. 200, 201, 227 seqq.; Inst. 1, l. 1, tt. 14-20, 25, 26; C. B. 1776 seqq.; C. L. 200.
What are the duties of tutor and curator? - A tutor has care of the person of the minor and of his education, especially religious education, and represents him in civil acts, and merely administers his goods. C. I. 277, 296, 318; C. G. 450, 457, 481; C. H. 261 seqq.; C. A. 188, 205, 216, 243; C. B. 1793, 1801 seqq.; C. L. 243 seqq., 258 seqq. Hence he cannot exceed the limits of administration. C. I. 296 seqq., 301; C. G. 456 seqq., 482; C. A. 233, 484; C. H. 269, 275; C. B. 1804, 1831. A curator furnishes assistance and authority to him who is under his care. C. I. 318, 339, 432. Therefore the power of tutor and curator is confined within certain limits, and in any matter whatever of graver moment is dependent upon the family Council and even upon the homologation, or confirmation, of the tribunal. C. I. 296, 297, 301; C. G. 457, 467; C. H. 269 seqq., 293 seqq.; C. A. 216, 233; C. B. 1803 seqq.; C. L. 74 seqq., 263 seqq.
Therefore both tutor and curator are bound to use great fidelity in their own office, as a good father of a family, and if he gravely fails in fulfilling it, he sins gravely, even against justice, by force of a quasi-contract, and they are bound to compensation of harms. C. I. 277, 302; C. G. 450, 469; C. A. 202, 204, 228, 264, 265; C. B. 1805, 1833, 1848; C. L. 220 seqq.; L. 341, 917, 918.
A tutor, unless he is the paternal or maternal grandfather, must give surety, from which however the family council can dispense him. C. I. 292. Cf. C. B. 1844; C. H. 252 seqq. From C. A. 237, a tutor is not obligated to surety. Besides this, from the beginning of tutelage he must make a statement and inventory of the goods of the minor. C. I. 281; C. G. 451; C. A. 222, 223, 224; C. H. 264; C. B. 1802.
Each year, while tutelage lasts, unless he is the paternal or maternal grandfather, he must render an account of his administration to the family Council, C. I. 303; or to the substituted tutor, C. G. 470; or to the pupilary judge, C. A. 238, 239. Cf. C. H. 279 seqq.; C. B. 1837 seqq.; C. L. 249 seqq.
When tutelage has been completed, he is likewise bound to render an account of his administration, C. I. 302; C. G. 469; C. H. 281; C. B. 1890, and he is bound concerning less diligent administration, unless he is freed by legitimate prescription. C. I. 309; C. G. 475; C. H. 287; C. B. 1833; Inst. 1, l. 1, t. 21. Acts of the family council and tutor need the homologation of the tribunal when the matter concerns alienation of the goods of the minor, receiving money by loan, and other graver matters. Homologation is ratification, confirmation.
Note: The tutor or protutor cannot buy or hire the goods of the minor, nor can he accept the cession of the rights of the minor. No agreement can be made between tutor and minor, nor can any testamentary disposition useful to them be made before the account of tutelage has been rendered and approved. Yet he has the right to compensation for expenses made by reason of tutelage, and to fitting remuneration for his office. C. I. 300, 307, 769, 1457; C. G. 156, 450, 472, 907; C. H. 269, 270, 275, 276, 285, 753; C. A. 266, 271; C. B. 1795, 1796, 1805, 1834-1836; C. L. 73, 243 seqq.; L. 917.
You will resolve: A tutor or curator cannot make donations or gratuitous remissions from the goods of the ward; he is constituted not for destroying, but for protecting. Except a remuneratory donation; for thus he can, for example, add something by liberal donation to a stipend owed for liberal service. Lugo, d. 23, s. 10; L. 341; C. H. 275; C. B. 1804.
What are the obligations of a minor? - A tutor is in the place of a father. Hence the duties of a minor toward him are similar to those which would be owed to the father himself. But the obligation of a minor toward a curator is lesser; yet as to administration of goods he must both be subject to him and bear a grateful mind. Yet a minor is not bound, whether toward curator or toward tutor, as strictly to love, reverence, and obedience as toward parents. For his dependence upon them is far less than upon parents. C. I. 280; C. H. 263; C. A. 217.
What is the value of the acts of tutor and curator? - Those things which are done according to the laws, whether by tutor or by curator, are valid and firm, and therefore by no means liable to rescission, although they were not useful, but harmful, to him who was under tutelage or care. C. I. 335, 1300, 1304; C. G. 1314. On the contrary, those things which were not done according to the laws, although usefully managed, can be revoked through restitution in full. Through restitution; for meanwhile they are valid. C. I. 1107; C. G. 502, 1125, 1304; C. H. 1291; C. B. 1829 seqq.
How do tutelage and care end? - They end on the part of the tutor or curator by his legitimate excuse, removal, death, or by the affairs committed to him now completed. On the part of him whose tutor or curator he is, by his majority of age, or when the cause of interdiction or inhabilitation has ceased, or by his death. C. H. 278; C. A. 249, 251, 253, 283; C. B. 1882 seqq.; C. I. 388, 342; C. G. 512, 514.