CONDIȚIILE INSTITUIRII ȘI EFECTELE TUTELEI SPECIALE
THE CONDITIONS FOR THE ESTABLISHMENT AND THE EFFECTS OF SPECIAL GUARDIANSHIP

Summary/Abstract: The paper analyses the conditions for the establishment and the legal effects of special guardianship in the context of the reform introduced by Law No. 140/2022, which restructured the legal framework governing the protection of natural persons. The new regulation establishes a gradual and differentiated system of protection, grounded in the principles of proportionality, subsidiarity, and respect for individual autonomy and dignity. Special guardianship is instituted only where the person is unable to adequately manage their interests even with support, being conditioned upon the existence of a severe impairment of mental faculties, the necessity of representation in the exercise of rights and freedoms, and the impossibility of applying less intrusive measures. The measure is individualized, time-limited, and subject to judicial review by the guardianship court. As regards its effects, special guardianship entails the absence of legal capacity to exercise rights, placing the person under a legal regime similar to that of a minor under the age of 14, with the particularity that the scope of the measure is concretely determined by the court depending on the circumstances of each case. Legal acts concluded in disregard of the protective regime are sanctioned with annulment or, as the case may be, reduction of performances, while the opposability of the measure towards third parties is conditioned by the fulfilment of publicity formalities. In conclusion, special guardianship is configured as a modern mechanism of legal protection, replacing the rigid model of judicial interdiction with a flexible system adapted to the concrete degree of vulnerability and the individual needs of the protected person.

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