Minors and incapacity

What it is 

Legal capacity is the ability to have legal relationships and is acquired at birth. From that moment a person may be entitled to rights and obligations. 

This is not the same thing as the ability to exercise such rights and obligations, which requires that the subject have gained some awareness of his or her actions: upon attaining majority, fixed at 18 years of age, a person acquires the capacity to carry out any action (except specific cases for which a different age is established).

Minors, therefore, are not able to make use of their rights and are subjected to parental responsibility; where the parents are missing or cannot exercise authority over the child, protection comes into play with the appointment of a guardian to administer the child's property. 

In the case of adults who cannot care for their own interests, the law provides as follows:

  • The process of legal incompetency for persons who due to illness or other reasons, are in the habitual (permanent) condition of infirmity of mind that renders them totally unable to cater to their interests. A legal guardian is then appointed who cares for the interests of the incompetent party.
  • For an adult who, despite being mentally ill, but whose mental state is not so severe as to justify incompetency (“interdizione”), the law specifies incapacitation (“inabilitazione”). By way of this procedure, the subject can perform alone acts that do not go beyond ordinary administration while for acts of extraordinary administration (e.g. the sale of a property, taking out of a mortgage) he must be assisted by an administrator (and sometimes also be authorised by a judge of the court of protection). A treatment similar to that applicable to an incapacitated person applies to a child who has been allowed to marry before the age of eighteen.

In all cases where property transactions are to be performed for minors or others lacking legal capacity, those who assist or administer (link to amministrazione di sostegno) the property of the incapacitated persons, must be very careful to behave in accordance with the law. It can happen, for example, that commitments are made in the name and on behalf of incapacitated persons not in accordance with the law: this is illegal and dangerous behaviour as not only is it not binding on the incapacitated person toward the third party, but it exposes the representative to precise and grave responsibilities both toward the incapacitated person and toward the third party.

The role of the Notary  

In the management of assets of an incapacitated person, the notary, given his specific knowledge on the subject, can suggest the most appropriate solutions to suit specific requirements.