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guardianship


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Greece

The development of the law of guardianship in Greece and Rome was influenced by the change in the conception of guardianship itself, which began as a right of preserving and protecting the ward's property in the interest of the whole kin (as contingent heir of the ward), but became gradually a duty of the guardian in the interest of the ward. This explains the restrictions imposed upon the guardian with regard to his control over the child's property, and the increasing supervision of public authorities over his activity as guardian. The Greek guardian was either epitropos (lit. ‘trustee’, ‘steward’) of boys and girls until their majority—18 years in the case of boys (see democracy, athenian, 2)—or kӯrios (lit. ‘master’, ‘controller’) of women. Guardians were appointed by the father's will; failing testamentary appointment the next relatives (brother or uncle), being the most likely successors, were entitled to claim the guardianship; in the absence of these an official (the archon in Athens) appointed the guardian. The guardian had to provide for the ward's education, attend to all his interests, and represent him in legal transactions: in general he was required to act on his behalf with the same solicitude as for a child of his own. The administration of property by the guardian, esp. of landed property, was submitted to the control of magistrates. Action for damages caused by the guardian might be brought against him by the ward within five years of the end of the guardianship. The principles of guardianship of women were analogous; but a woman could dispose freely of objects of lesser importance, without the help of her kyrios. See inheritance.

Rome

Roman law distinguished tūtēla and cūra as types of guardianship of persons not subject to father or husband (by patria potestas or manus (see marriage law). Tutela concerned children below the age of puberty (impūberēs, eventually boys under 14, girls under 12) and women, cura those above these ages but under 25 (minors), lunatics, and spendthrifts.

The original purpose of guardianship, conservation of property, is clear in the rule which gave tutela of an impūbēs on the death of the paterfamiliās (see patria potestas) to the nearest male agnate (relation through males) as tūtor lēgitimus (guardian indicated by statute), the person who would inherit if the ward died. But already in the Twelve Tables the father could appoint someone else by will. Later, failing these, a magistrate would appoint one. Tutela of males ended with puberty, when the ward could beget an heir who would exclude the agnate from the inheritance. But a female's children did not fit this definition; so tutela of women was for life. In classical law it became attenuated because of changing attitudes to family. By Cicero's day, many upper‐class women could treat the guardian's authorization as a ‘rubber‐stamp’, necessary but easily obtained.

Tutela's shift from privilege to burden appears in the evolution of the tutor's liability for misconduct. In early law he was liable only for fraudulent misappropriation, but in the later republic he could be required to account for his conduct according to the principles of good faith. Rules accrued, as did grounds which exempted from service as guardian one appointed by a will or by an official.

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Subjects: Classical Studies.


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