The Convention was signed by the Italian government on 1 April 2003, but it has not yet come into force in Italy. The previous Hague Convention concerning the powers of authorities and the law applicable in respect of the protection of children, which was concluded on 5 October 1961, was introduced by the law No 742/1980 and has been in force since 23 April 1995.

1.1 Which law applies to questions of custody and legal representation of a minor? Which criteria are used to determine the applicable law?

The applicable law is primarily determined by the Italian law on International Private Law (Law No 218/1995), where Article 42 refers to the previous Hague Convention on of 5 October 1961 (therefore the criteria for voluntary jurisdiction set out by Art. 9 of Law  218/95 do not apply)

Under Art. 1 of this Hague Convention, the judicial or administrative authorities of the State of the habitual residence of a child have the power to take measures directed to the protection of his/her person or property. Under Art. 2, the authorities having power by virtue of the terms of Article 1 shall take the measures provided by their domestic law. Italian law extends the application of the Convention to those people who are considered minor only by their national law and to those people whose habitual residence is not located in one of the Contracting States.

1.2 Which authority has international and territorial jurisdiction concerning questions of custody?

Between Italy and other EU Countries (with the exception of Denmark), jurisdiction is governed by the Brussels IIa Regulation (EC 2201/2003) and therefore the Court of a Member State has jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seized (Art. 8).
Should the Brussels Regulation be ineffective (mainly because non EU Members are involved), international jurisdiction, from the perspective of Italian International Private Law, is still governed by the Hague Convention on the Protection of Children of 5 October 1961, specifying that the Court of the habitual residence of the child has jurisdiction (Art. 1); exceptionally, the State of which the child is a citizen, can adopt measures to protect him/her even if the habitual residence of the said child is not within its borders (Art. 4).

In Italy, the territorially competent judge is that of the minor’s domicile; the said domicile coincides with that of residence of the family or of hi/her guardian. If the two parents do not live together, the minor’s domicile is that of the parent with whom he/she lives (Art 45 cc); should he/she not live with either of his/her parents, in case of absence of a guardian, his/her domicile is the place where his/her interests are primarily focused.

In case the minor needs to sell or in any way deal with assets that have come to him/her under succession law, however, the competent judge is the “Succession Court” (Art 747 cpc), i.e. the Court where the deceased had his/her last residence (Art. 456 cc), but he/she must ask for the opinion of the judge of the place of domicile of the minor (whose competence is determined as mentioned above).

1.3 Which authority has international and territorial jurisdiction concerning questions of representation?

Under Italian international private law, no distinction is made between custody and right of representation, therefore the above applies.

The age of full legal capacity under Italian law is 18 (Art. 2 CC). There are some specifics laws which allow minors to be personally party to a legal transaction: e.g. Labour Law.

From the age of 16, minors can obtain permission from the Court for a marriage (Art. 84 CC) and so they are emancipated by law (Art. 390 CC). An emancipated (married) minor may be allowed by the judge to start an individual business and so he/she obtains legal capacity (Art. 397 CC). Anyway, the emancipated minor has the capacity to perform such transactions as do not exceed administration in the ordinary course of business (Art. 394 CC).

2.1 Is it possible that in some cases the legal capacity of a minor is extended (e.g. right to get married, right to make last will)?

Yes (see 2.).

2.1.1 Is a decision required to extend the legal capacity? If so, who is competent to decide on the extension of the legal capacity?

A Court Decree is required under a previous request by the minor him/herself and/or of his/her legal representative (parents) and/or their consent

2.1.2 List the transactions that the minor may enter into alone (e.g. the right to make a last will) with reference whether approval of some other person or authority is necessary for such transactions.

Marriage (Art. 84 CC)

Individual enterprise (Art. 397 CC)

Emancipation gives the minor some particular powers and faculties. The minor is emancipated by law upon marriage (Art. 390 CC). Nowadays there is no other way to be emancipated. Emancipation confers on the minor the capacity to perform such transactions as do not exceed administration in the ordinary course of business. The emancipated minor can, with the assistance of the guardian, withdraw principal amounts on condition of an appropriate investment and appear in judicial proceeding either as a plaintiff or as a defendant. For other transactions exceeding administration in the ordinary course of business in addition to the consent of the guardian, the authorisation of the guardianship judge is required for the acts indicated in Article 375 (e.g. alienate property or mortgages), if the guardian is a person other than a parent, the authorisation shall be given by the Tribunal after hearing the guardianship judge (Art. 394 CC). If authorised to do so by the judge, the emancipated minor can operate an individual enterprise without the assistance of a guardian. He/She, who is authorised to operate a business enterprise, can act by himself/herself in transactions which exceed administration in the ordinary course of business, even if they are not connected with the operation of the enterprise (Art. 397 CC).

Both parents have custody of the minor until he/she has attained the age of 18 years. In more important cases, if they are in contrast, they can enquire to the judge. He/she regards the situation and suggests the most useful determination for the minor and household unity. (Article 316 CC)

Where the parents are not married to each other, custody is awarded to the parent that acknowledges the child.

If both parents acknowledge the child, they have joint custody if they live together. If the parents live separately, custody is awarded to the parent with whom the minor lives and, if the minor does not live with them, to the parent that primarily acknowledges the child.

Sometimes the judge can decide in a different way, taking into consideration the minor’s interest. (Article 317 CC)

Where a parent’s entitlement to joint custody ceases to apply, the other parent shall in principle have sole custody.

If both parents are no longer able to act, custody is transferred to a guardian appointed by the court (“giudice tutelare” or guardianship judge), according to Article 343 of the Civil Code. As soon as the court is informed of the fact, it designates the guardian by itself.                                   

3.1 What is the scope of the right of custody?

To care the personal and property child interests.

Custody guarantees protection of the minor’s personal and property interests.

The parents have the duty to educate and take care of their children; they manage their assets. This is the so-called ‘internal’ aspect. At the same time, and in connection with the abovementioned ‘internal’ profile, they represent the minor in every ordinary and extraordinary act and manage his/her property.

Each parent can perform ordinary acts; parents must require the authorisation of the judge to perform extraordinary acts, such as selling, buying, accepting inheritance; the judge decides based on necessity and utility for the minor.

If there is a conflict of interest between the minor and the parents, the judge can appoint a special trustee or entrust custody to the parent without conflict (Article 320 CC).

“Article 320 – The parents jointly, or the parent who exercises custody in an exclusive manner, represent the children born and to be born in all civil acts and administer their property. Acts of administration in the ordinary course, excluding contracts by which personal rights of enjoyment are granted or acquired, can be performed severally by each parent.

In case of disagreement or of exercise of authority dissimilar to the agreed decisions the provisions of Article 316 apply.

The parents cannot transfer, mortgage or pledge the property received by the child under any circumstances, even mortis causa, accept or renounce inheritances or legacies, accept gifts, proceed with the dissolution of common ownership, contract loans or leases for a term exceeding nine years or perform other acts beyond the limits of administration in the ordinary course or initiate, compromise or refer to arbitration actions in connection with such acts, except in the case of necessity or for obvious advantage of the child, after authorisation by the guardianship judge.

Major amounts cannot be collected without the authorisation of the guardianship judge who determines how they shall be invested.

The operations of a business enterprise cannot be continued unless authorised by the court, upon the opinion of the guardianship judge. The guardianship judge can consent to the operation of the enterprise on a provisional basis, until the court rules on the petition.

If a conflict of interests arises between children who are subject to the same parental authority, or between them and the parents or the parent exercising authority in an exclusive manner, the guardianship judge shall appoint a special guardian for the children. If the conflict arises between the children and only one of the parents exercising authority, representation of the children belongs solely to the other parent.”

“Art. 321 – Appointment of a special guardian – In all cases in which the parents jointly or the parent who exercise authority in an exclusive manner, cannot or do not intend to perform one or more acts in the interest of the child, beyond the limits of administration in the ordinary course, the judge, upon request of the child, the public prosecutor or another relative having an interest, and after hearing the parents, can appoint a special guardian for the child authorising him/her to perform such acts.”.

3.2 Who will appoint the custodian(s), if either one or both parents/custodians are not able to act anymore (e.g. in case of death or loss of legal capacity)?

3.2.1 On who’s proposal and when the decision on appointment of custody is made?

3.2.2 Is the competent authority free in its choice of a new custodian? 3.2.3 Can the right of custody belong to several persons? Is it possible to have different custodians for different areas (care of property/care of the child itself)?

According to Article 320 (and 316) of the Italian Civil Code, both parents have custody of the child. Where a parent’s entitlement to joint custody ceases to apply, the other parent shall in principle have sole custody.

If both parents are no longer able to act, custody is transferred to a guardian appointed by the court (“giudice tutelare” or guardianship judge), according to Article 343 of the Civil Code. As soon as the court is informed of the fact, it designates the guardian by itself.

In this case, the person appointed as guardian shall preferably be the person nominated by the parent who dies later. The appointment is made by either of the parents by means of a will (testament), public deed, or private deed with authentication of signatures. Their proposal is binding but can be not considered by the court because of serious reasons (Art. 348). Where no such person has been nominated, or the nominated person is considered not affordable because of serious reasons by the court, the court shall take account of the criteria set out in law (Art. 348) to select a suitable guardian. In principle, the court shall select a member of the family.

In this case, the child should be heard.

In principle, a guardian takes care of the property and of the person of the child and must represent him/her accordingly. A guardian is subject to specific legal approval for the most important activities (Articles 374 -375 C.C.) and shall submit an annual report to the court.

There are specific rules when relatives are in conflict of interests with the minor or if they do not want to act in the interest of the minor. Articles 320 and 321 regulate these hypotheses by giving custody to one of them or to a special legal guardian.

It is not possible to have more than one guardian.

3.3 How and by whom will be determined the right of custody if the parents are arguing about it? Is there a difference between married and unmarried couples?

Disputes over parental custody – whether between married or unmarried parents – are decided upon by the family court, according to Article 316 Civil Code. The abovementioned Articles 320 and 321 CC regulate these matters in the specific case of administration of goods.

3.4 May the right of custody be transferred to another person by means of a power of attorney?

Italian law does not provide for transfer of custody by power of attorney: it is forbidden to transfer custody. It is only possible for a POA to represent the minor after they had taken the decision (and, possibly, obtained authorisation).

Parental custody includes the legal and general power of representation and is equally shared between parents (ordinary or extraordinary acts) – Art. 320 CC. See under points 3.1 and 3.2.

4.1 Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity)?

4.1.1 On who’s proposal and when the decision on appointment of a legal representative is made?

4.1.2 Is the competent authority free in its choice of a new legal representative?

4.1.3 Can the right of legal representation belong to several persons? Is it possible to have different representatives for different areas?

Power of agency is an essential and not separate portion of custody. See under point 3.2.

4.2 Are there any restrictions / extensions for the legal representative(s)?

Yes.

4.2.1 Are there some areas in which the legal representative is not competent to act (e.g. drafting of a last will, entering into marriage)?

Minors are not able to draft a last will. Their legal representatives (i.e. parents) may not enter into any highly personal legal transaction (marriage, last will) on behalf of the minor.

4.2.2 Is there a connection between the right of custody and the representation rights (e.g. power of representation exists only in the areas of custody)? Would it be possible that both parents have custody but only one has the right of representation in transactions with some property of a minor?

Yes, there is a connection; the power of representation exists only in the areas of custody. It is not possible for both parents to have custody and only one to have representation. For ordinary business, each parent has custody and they act and represent the minor (if there are contrasts between the parents, there will be a Court decision; see above). For extraordinary business, both parents have custody, they have to take the decision together and they have to represent the minor together. For example, they have to sign together documents before the notary after having obtained authorisation from the Court (or guardianship judge).

4.2.3 Is it required that all legal representatives are concluding the transactions on behalf of the minor jointly (e.g. both parents) or may the transaction be concluded by one legal representative of the minor alone (e.g. one parent)?

4.2.3.1 Name the legal transactions (e.g. waiver of succession) the legal representative may perform on behalf of the minor if he/she is acting alone (e.g. one parent).

4.2.3.2 Name the legal transactions (e.g. waiver of succession) into which the legal representatives may enter on behalf of the minor only jointly (e.g. both parents).

4.2.3.3 Would there be any difference on the requirement of joint representation in case the parents have never been married? No / Yes (please specify).

As stated above, both parents must act together for all extraordinary legal transactions (and with a previous authorisation from the Court). For ordinary acts, each of them is allowed to take the decision and represent the minor. Nowadays there is no difference whether the parents are married or not.

The parents have the duty to educate and take care of their children; they manage their assets. This is the so-called ‘internal’ aspect. At the same time and in connection with the abovementioned ‘internal’ profile, they represent the minor in all ordinary and extraordinary acts and manage his/her property.

Each parent can perform ordinary acts; parents must require the authorisation from the judge to perform extraordinary acts, such as selling, buying, accepting inheritance; the judge decides based on necessity and utility for the minor.

If there is a conflict of interests between the minor and the parents, the judge can appoint a special trustee or entrust custody to the parent without conflict (Article 320 CC).

“Article 320 – The parents jointly, or the parent who exercises custody in an exclusive manner, represent the children born and to be born in all civil acts and administer their property. Acts of administration in the ordinary course, excluding contracts by which personal rights of enjoyment are granted or acquired, can be performed severally by each parent.

In case of disagreement or of exercise of authority dissimilar to the agreed decisions, the provisions of Article 316 apply.

The parents cannot transfer, mortgage or pledge the property received by the child under any circumstances, even mortis causa, accept or renounce inheritances or legacies, accept gifts, proceed with the dissolution of common ownership, contract loans or leases for a term exceeding nine years or perform other acts beyond the limits of administration in the ordinary course or initiate, compromise or refer to arbitration actions in connection with such acts, except in the case of necessity or for the obvious advantage of the child, after authorisation by the guardianship judge.

Major amounts cannot be collected without the authorisation of the guardianship judge who determines how they shall be invested.

The operations of a business enterprise cannot be continued unless authorised by the court, upon the opinion of the guardianship judge. The guardianship judge can consent to the operation of the enterprise on a provisional basis, until the court rules on the petition.

If a conflict of interests arises between children who are subject to the same parental authority, or between them and the parents or the parent exercising authority in an exclusive manner, the guardianship judge shall appoint a special guardian for the children. If the conflict arises between the children and only one of the parents exercising authority, representation of the children belongs solely to the other parent.”

“Art. 321 – Appointment of a special guardian – In all cases in which the parents jointly or the parent who exercise authority in an exclusive manner, cannot or do not intend to perform one or more acts in the interest of the child, beyond the limits of administration in the ordinary course, the Judge, upon request of the child, the public prosecutor or one of the other relatives having an interest, and after hearing the parents, can appoint a special guardian for the child authorising him/her to perform such acts.”

4.2.4 Other restrictions for legal representatives:

4.2.4.1 Is it necessary that the transaction is approved also by some other person or authority (e.g. parent, court or local government)? What are the formal requirements on the form of the approval?

For specific and generally important acts or contracts, Article 320 Civil Code requires an authorisation of the Court. See 3.1.

4.2.4.2 Name the transactions that persons legally representing the minor may enter into only with the consent of a court or some other authority or person appointed by law.

See Art. 320 Civil Code as above

4.2.4.3 In case of a mandatory approval of the transaction by another person (e.g. the other parent) or authority (e.g. court) is there any difference whether the approval is given before or after the transaction? What are the legal consequences for the transaction if the approval required by law will be denied?

When it is required (extraordinary acts), Court approval must be issued prior to the conclusion of the legal transaction in which it is required: it is an authorisation not an approval. The acts performed without observing the rules on Court authorisation (and, in general, the prescriptions of Articles 320 et seq. CC) can be annulled at the request of the parents exercising the custody or by the child him/herself or of his/her heirs or successors in interest, in accordance with Article 322 CC. If the Court authorisation is denied, it is not possible to sign the transaction, but it can be requested again with a new basis.

4.2.4.4 Are there certain cases in which the legal representatives shall not act (e.g. contract on behalf of the minor concluded with parent or family member)? Please describe the appropriate procedure for resolving the problem if applicable (e.g. nominating another representative, court’s approval).

According to Article 323 CC, the parents exercising authority over the children cannot, even at public auction, purchase – either directly or through an intermediary – the property and rights of the minors. Acts performed in violation of this rule can be annulled. The abovementioned parents cannot become the assignees of any cause of action or claim against the minor.

If there is a conflict or a contrast between parents having custody and representation, see the abovementioned Articles 320 and 321 CC. There are similar provisions when a guardian is appointed.

4.3 Are there any other restrictions related to the rights of a minor (e.g. the right of succession) for the persons having the right of custody or the right of legal representation of a minor in addition to the restrictions specified above?

Art. 596 CC: Incapacity of guardian and deputy guardian.

Testamentary provisions by a person subject to guardianship in favour of the guardian are void, if made after his/her appointment and before the guardianship is approved or the action for guardianship is complete, even though the testator died after the approval of the account. This rule also applies to the deputy guardian, if the will is made during the time in which he/she substituted for the guardian.

However, provisions made in favour of the guardian or deputy guardian who is an ascendant, descendant, brother, sister or spouse of the testator are valid.

4.4 May the right of representation be transferred to another person by means of a power of attorney?

Yes

4.4.1 Is the consent of all legal representatives to the transfer mandatory?

4.4.2 Are there any restrictions to this type of power of attorney (e.g. the right of representation may not be transferred in its entirety or it cannot be transferred in regard to certain transactions)?

4.4.3 What are the formal requirements for this type of power of attorney?

The legal representative may authorise another person. When both parents jointly represent the child, both must sign the POA. If required, parents must have the previous authorisation of the Court. Parents (or guardian) cannot relinquish their legal authority-custody and the POA is revocable. A general (revocable) POA is permitted. There are no specific formalities for the POA; the same formalities are required as for the transaction.

5.1 Does the law provide some kind of document, which gives evidence of the right of custody and/or representation?

No, there is not a specific document for the legal representatives (parents).

The legally appointed guardian (tuore/curatore/amministratore di sostegno) can obtain a certificate from the Court. In each Court there is a legally appointed guardian register – Registro delle Tutele (Art. 389 CC).

5.2 Is there any other kind of document, proving the right of custody and/or representation?

Yes. The birth certificate gives evidence of who the child’s parents are and, if applicable, the name of the legally appointed guardian (Art. 389 CC). The Court Chancellor/Clerk has the legal duty to transmit copies of each decision about custody and the legally appointed guardian to the Civil Status Register and to the Notarial Chamber.

It depends on the people who have custody of the minor: as stated above, they are, usually, both parents.

When both parents have the custody, they are responsible for giving the consent/permission.

6.1 What are the requirements for the formal validity of such a consent/permission/authorisation?

When both parents have custody, they are responsible for giving consent/permission and a file signed by them and authenticated by a notary is therefore required.

Part 1: Protective measures for adults with diminished capacity 

Under Italian Law, the main instruments for the protection of persons with total or partial incapacity are: guardianship (tutela), curatorship (curatela) and support administration (amministrazione di sostegno).

Guardianship is the instrument laid down for situations of lasting disability, whereby a person becomes incapable of administering his or her own affairs (article 414 of the Civil Code, hereafter).

A fully incapacitated person (persona interdetta), barring possible exceptions defined in the guardianship judgment, cannot carry out transactional acts, which will be carried out by the legal guardian, who will be entrusted with representing the fully incapacitated person and managing his or her assets. For extraordinary administration acts, prior judicial authorisation is required (Articles 374 and 375 C.C.). 

Partial incapacitation (inabilitazione) is an instrument provided for situations of less serious infirmity or excessive spending, or habitual alcohol or drug abuse, which expose a person to serious financial harm (article 415 C.C.).

A partially incapacitated person (persona inabilitata) may carry out ordinary administration acts (art. 424 C.C.). However, in order to perform extraordinary administration acts, both the assistance of a curator and, barring few exceptions, prior judicial authorisation are required (art. 394 C.C.).

The judgment establishing the guardianship (interdizione) or curatorship, and any subsequent provisions, may decree that certain acts of ordinary administration may be carried out by a fully incapacitated person without the assistance of the guardian, or that certain acts exceeding ordinary administration may be carried out by the partially incapacitated person without the intervention of the curator (article 427 C.C.). 

Support administration is arranged when a person, as a result of an infirmity or a physical or mental impairment, is unable, even partially or temporarily, to provide for his or her own interests. A support administrator may have a duty of representation or of assistance according to the tutelary judge’s decision. Therefore a person subject to support administration retains his/her capacity to act in those areas for which the representation or assistance of the support administrator is not deemed necessary by the tutelary judge.

Support administration, where the conditions for its application are met, is nowadays the measure preferred by the judicial authorities for the protection of incapacitated persons or persons with reduced capacity, being a more streamlined and effective measure.

In fact, the effects of the support administration, as opposed to guardianship and curatorship, are not laid down rigidly by law, but are determined on a case-by-case basis by the judicial authority (tutelary judge), according to the actual needs of the individual.

Part 2: Possibilities to anticipate future loss of capacity 

Italian law does not provide for a lasting power of attorney. Therefore it is not possible to designate, before a notary, a person of trust to act as your representative in the event of a possible loss of capacity to act, following an accident, illness or old age. 

In general, in our legal system, the power of attorney – special or general – remains effective until the legal incapacity of the principal is declared. In the latter case, the power of attorney remains effective only if it is conferred in the interest of the holder of the power of attorney or of third parties. 

A person who has attained majority and is able to act, may designate a support administrator in view of his or her possible future incapacity (article 408 C.C.), but not a curator or a guardian respectively for cases of full or partial declaration of incapacity.

This designation may be revoked. 

The functions of the support administrator (in cases of support administration), of the guardian (in cases of guardianship), or the curator (in cases of curatorship) are illustrated above in part I

By virtue of Law 219/2017, which entered into force on 31 January 2018, in view of future incapacity to self-determination, all persons who have attained majority and are of sound mind may express their wishes relating to health care through a DAT (Disposizioni Anticipate di Trattamento, advance directive on medical treatment).

For the implementation of the advance directive on medical treatment, the instructing party has the right to choose a specially designated “representative”, who will be in charge of liaising with medical staff and health facilities on behalf of the patient who is unable to do so. The representative must have attained majority and be of sound mind. 

If the instructing party designates a representative, the designation only becomes effective after acceptance of the appointment, which may be immediate and contained in the advance directive on medical treatment, or subsequent, and therefore contained in a subsequent deed.

The assignment to the representative who has accepted it may be terminated – even though the advance directive on medical treatment remains perfectly valid and effective – through renunciation, revocation, death or incapacity of the representative.

Renunciation must be made in writing by law.

Finally, it must be concluded that the instructing party may designate a “subsequent” representative, who will take on the task in the event of the renunciation, death or incapacity of the first designated representative.