If you are 50’s or older and reside in Mexico 60% of the time or more, this is a must read for you.
Estate Planning is part of my expertise, thus I regularly advice individuals and couples and I would like to discuss Legal Guardianship, per Mexican Law. Guardianship, known as “tutela,” in Spanish, is intended to protect minors, and to protect adults who do not have the legal capacity to act on their own behalf.
A guardian acts on behalf of a person who otherwise would have legal capacity to do so on his own. In addition to the Guardian, the law also requires that a conservator (curador) be assigned to oversee the guardian and to manage, directly or indirectly, the property (Estate) of a minor or incapacitated individual. Persons who fit specific criteria are subject to guardianship: Minors; Adults who do are unable to take decisions on their own due to their mental/physical issues; Illiterate deaf-mutes; Alcoholics and drug addicts.
The law, in Baja California, provides three types of guardianship’s: Self-appointed, Legal, and Court-appointed.
Self-Appointed Guardianship is established by designating a person as Guardian by means of instructions granted by an individual who may be under future custody for mental and/or physical reasons by appointing an individual before a Notary Public (article 488 Bis Civil Code of Baja California) in the event the person becomes unable to take decisions on his own, that is, when an individual fears that at some time in the future he/she might not be in sane mind and body. This guardianship takes precedence over all other normal designations.
Legal Guardianship is established in the absence of someone to exercise custody and the absence of an appointed guardianship. Siblings and/or other close relatives of the minor or incapacitated person carry out this type of guardianship.
In the case of incapacitated adults, a husband or wife has guardianship responsibilities over his or her spouse, and adult descendants have guardianship duties over their widowed parents.
Court Appointed Guardianship is established in the absence of someone to exercise legitimate guardianship. A Court Appointed Guardianship is also necessary in the event that the Guardian becomes incapacitated and no other substitute is available.
All guardianships are terminated under the following circumstances:
1. By the death of the minor or incapacitated person subject to guardianship.
2. By the individual being eventually diagnosed as mentally and physically able to take care of his self after being incapacitated.
3. When a minor reaches adulthood.
4. If the person subject to guardianship becomes subject to Custody.
Now let’s see what Article 488 Bis of the Civil Code for Baja California says about this:
Adults may designate their respective guardian, in the event that they might be declared unable to make decisions concerning their rights, property medical attention, etc.
The designated guardian may choose must be responsible of his/her duties for a minimum period of one year, after which they may request a judge to revoke such duties.
A person may nominate more than one guardian (Tutor per Mexican law with a different meaning and legal effects in Mexico, compared to common law countries such as the United States); they shall serve on a successive order as instructed by the person making the beneficiary.
The appointment of the guardian must be made in writing before a notary public and is revocable.
Any person, with a legitimate interest /concern, may request a judge to remove or revoke the duties of a guardian, when the guardian fails to comply with the duties for which such person is responsible with regards to the beneficiary.
Some of the advantages I see pursuant to article 488 Bis is that a person appointing a Guardian is able to do so being sane of mind and body, thus if such person became unable to take make vital at some point in the future and had not appointed a Guardian, then the relatives or spouse of the individual would have to file a request in Court to name a Guardian.
As in California, a Guardian has the same responsibilities to care for an individual as a parent would. That means the guardian has full legal and physical custody of the person and can make all the decisions concerning the care of a person.
A guardian can be anyone: relatives, friends of the family, or other people suitable to care for an adult or child.
I provide this service as well as advise on Advance Care Planning.
Let me know if you have questions regarding the above, and again, if you are over 50 and reside in Mexico 60% or more of the time, you should consider the advantage of naming one or several guardians, just in case.