Legal Definitions - tutorship

In civil law jurisdictions, tutorship refers to the legal office and authority granted to an individual (known as a "tutor") to care for and manage the affairs of someone who is legally unable to care for themselves. This typically applies to minor children or adults who have been deemed incapacitated. The tutor is responsible for protecting the person's well-being, property, and legal interests.

There are generally four main ways tutorship can be established:

• Tutorship by Nature

This type of tutorship is automatically granted by law to a surviving parent for their minor child. If parents are divorced or separated, it typically belongs to the parent who has been granted custody. In cases of joint custody, both parents share co-tutorship.

• Example 1: After a sudden illness, Mr. Davies passes away, leaving his wife, Sarah, as the sole surviving parent to their two young children. Sarah automatically assumes tutorship by nature, giving her the legal authority to make all decisions regarding their upbringing, education, and general welfare.
• Example 2: Following a divorce, the court awards Ms. Chen sole legal and physical custody of her teenage son. As the custodial parent, Ms. Chen holds tutorship by nature, making her responsible for her son's daily care, medical decisions, and legal representation.
• Example 3: Despite their divorce, Emily and Mark share joint legal and physical custody of their daughter. They both hold co-tutorship by nature, meaning they share equal authority and responsibility for their daughter's upbringing and legal matters, requiring mutual agreement on significant decisions.
• Tutorship by Will

This form of tutorship is established through a formal declaration, typically made in a parent's last will and testament. It allows a parent to designate who they wish to serve as the tutor for their minor children should they pass away. It can also be established by a formal declaration from a surviving parent before a notary and witnesses.

• Example 1: A single mother, knowing she has a serious medical condition, updates her will to explicitly name her sister, Aunt Carol, as the tutor for her children should she pass away. This designation in her will legally establishes tutorship by will.
• Example 2: A married couple, both with high-risk occupations, execute a formal declaration before a notary and two witnesses, specifying that their trusted neighbor, Mr. Henderson, should become the tutor for their minor son if both parents die simultaneously. This formal declaration creates tutorship by will.
• Tutorship by the Effect of the Law (Legal Tutorship)

This tutorship is bestowed directly by statute, meaning it does not require a court's approval or a family's recommendation. It is automatically granted by law in specific circumstances.

• Example 1: When Mr. Rodriguez suffers a debilitating stroke that leaves him mentally incapacitated and unable to manage his own financial or medical affairs, his wife, Mrs. Rodriguez, automatically gains legal tutorship over him. This allows her to make necessary decisions on his behalf, as this authority is granted by law due to their marital relationship, without needing a separate court order.
• Example 2: If an elderly individual becomes unable to make decisions for themselves, and they are married, the law in some civil jurisdictions automatically designates the spouse as the legal tutor for managing their personal and financial affairs. For instance, if Mrs. Lee becomes unable to sign documents for her pension or medical treatments, her husband, Mr. Lee, holds legal tutorship to act on her behalf, as mandated by statute.
• Tutorship by Judicial Appointment (Dative Tutorship)

This type of tutorship is established when a court officially appoints a tutor. This usually occurs when there is no surviving parent, no designation in a will, or when the existing legal tutorship is deemed unsuitable. The court often considers the advice of family members or other interested parties.

• Example 1: After both parents of a young child tragically die in an accident without having made a will or any formal declaration for guardianship, the court intervenes. Based on recommendations from the child's extended family, the judge appoints the child's maternal aunt as the tutor, thereby establishing tutorship by judicial appointment to ensure the child's welfare.
• Example 2: An elderly individual with no living relatives becomes mentally incapacitated and unable to manage their finances or personal care. A social services agency petitions the court, which then appoints a professional guardian (a "dative tutor") to oversee the individual's affairs, as there is no family member available or suitable to assume this role.