In this article we are going to deal with the remuneration to the guardian of a minor or incapable person. That is, if the tutor or guardian is entitled to receive compensation for his work.
Justification of the payment or remuneration to the guardian
Sometimes the guardian of a disabled person or minor can dedicate his life completely to his duty. What happens in the case of great dependents, who need help and assistance full time. Often, children or relatives are guardians, and they take care of their personal hygiene, washing feeding them, etc.
On other occasions, the management of the assets of a non capable or minor, may involve an almost exclusive dedication for the guardian. For example, in the case of the incapacitated person having several rented properties, etc.
In these cases, tutors and guardians cannot combine their work and their own work development. Sometimes, they cannot access a paid job; or make contributions to have access to a decent retirement.
This is why it is fair, in these cases, that a retribution is recognised in favour of the guardians.
Incomes and economic capacity of the non capable
As we have pointed out, it is not only possible, but fair, in some cases, for the tutor and guardian to be compensated for his position.
It is evident that in order to determine the amount of said remuneration, the economic capacity of the incapacitated person must be taken into account. That is, his assets, value, but also income (rents, etc.) that can receive.
Likewise, the work of the tutor will have to be taken into account. That is, what is the work done. If it is complicated, no, if it requires a lot of dedication, etc.
Legal regulation of the remuneration to the guardian
– Up to now.
Until now, article 274 of the Spanish Civil Code (Cc), established a limitation. It pointed out that, as far as possible, the remuneration should not be less than 4 per cent, nor more than 20 per cent, of the liquid return of the assets.
The recent Law 8/2021, to support people with disabilities in the exercise of their legal capacity, has modified the regulation of guardianship. Thus disappears the regulation and limitation of article 274 of the Civil Code.
Now instead, it says the new article 229 Cc, effective from 9/3/2021, basically:
1. The guardian has the right for a remuneration, provided that the minor or non capable assets allow it.
2. In principle, it corresponds to the judicial authority to fix the amount of it and the way to receive it.
3. To fix it, the work to be done and the value and incomes, rents, etc, of the assets will be taken into account.
4. It may also be established that the guardian makes the rents, etc of the assets in exchange for paying a maintenance to the minor or non capable.
Conclusion on the remuneration to the guardian
Retribution to the guardian or tutor is in some cases necessary. With the new regulation, its limitation in terms of amount disappears. And it will depend on what the judge fixes, taking into account certain factors.
If you want more information about the compensation to the guardian, or related matters, contact us.
The information provided in this article is not intended to be legal advice, it merely conveys information related to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
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