Yes, this Convention was ratified in Romania by Law nb. 361/2007 and entered into force on 1st January 2011.

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

The law applicable to parental authority and to the legal representation of minors is in principle governed by the Hague Convention of 19 October 1996 on the international protection of children.

The criteria differ as follows :

• As a general rule, in accordance with Article 15 of the Convention, the law applicable to measures protecting the child (including, according to the enumeration set out in Article 3, parental authority) is the lex fori – that is, the law of the authority that has the right to take measures to protect the person or his/her property. The law of the authority is, as a general rule, the same as the law of the minor’s habitual residence.
  By way of exception, a law other than the law of the authority may apply, if such law better protects the minor’s interests.  Another exception refers to a change in the minor’s habitual residence to that of another member state, which is party to the Convention and, in such case, the law of said state will apply. 
• The law applicable to the attribution and extinction of parental responsibility is the law of the child’s habitual residence,
• The law applicable to the exercise of parental responsibility is the law of of the state of the child’s habitual residence. If the child’s habitual residence changes, the law of the country of its new residence shall apply, thus it is subject to the place of exercise.
  Other situations not covered by the Convention. National law applies as a general rule to situations relating to legal capacity (eg. a minor’s emancipation, acquisition of full legal capacity, etc.). Filiation of a child of married parents is, as a general rule, established according to the law applicable to the general effects of the marriage (the law of the country of the spouses’ common habitual residence or ; failing that, the common national law, or ; failing that, the law of the country where the marriage was celebrated). For a child of unmarried parents, the child’s national law at its date of birth is applicable to establish filiation.

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

Regulation Brussels II bis (EC) No. 2201/2003 provides that the courts of the country of the minor’s habitual residence have jurisdiction in matters of parental responsibility. In cases when the Brussels II regulation does not apply, international jurisdiction is governed by the Hague Convention of 19 October 1996 on the international protection of children, according to which the child’s habitual residence determines the jurisdiction of the contracting state that has international jurisdiction. (art. 5)[1].

Article 150 of Law nb. 105/1992 on private international law relations (which has not been invalidated by the Civil Code) provides that Romanian courts have jurisdiction in court cases involving underage Romanian citizens domiciled abroad. According to the same law, Romanian courts (Tribunalul) have jurisdiction to decide on issues related to the guardianship of citizens domiciled in Romania (Romanians or stateless persons).

[1]                      Romania formulated a reservation when ratifying the 1996 Hague Convention by maintaining the jurisdiction of its authorities to take measures protecting the property of children located on its territory, and the right to not recognise parental responsibility or measures incompatible with its own for such categories of property.  

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

International jurisdiction for legal representation – this being an attribute of parental responsibility – is governed by Article 8 of Regulation (EC) No. 2201/2003. As a general rule, the courts (as defined by the regulation) of the place of the child’s habitual residence have jurisdiction.

The Romanian Civil Code provides that a person is a minor until he/she reaches the age of eighteen years, which is the age of majority (Art. 38 Civil Code). Full legal capacity starts on the date a person reaches majority. A minor can acquire full legal capacity through marriage (Article 39 of the Civil Code).

A minor who has reached the age of fourteen years has limited legal capacity (“restricted”). The legal transactions of a minor with limited legal capacity are concluded by the minor with his/her parents’ consent or, as the case may be, that of the legal guardian in the cases provided for by the law, and performed with the consent of the Guardianship Court. The approval or consent can be given latest at the time when the transaction is concluded. However, a minor enjoying limited legal capacity can also enter alone into transactions of conservation, transactions aimed at administering his/her assets that don’t affect him/her, as well as low-value transactions of disposal of a common nature and which are executed on the date of conclusion (Article 41 of the Civil Code), transactions disposing of the minor’s property subject to degradation or which has become useless to the minor.

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

Yes.

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?

If there are valid reasons, a minor who has reached the age of sixteen years can get married with medical advice, with his/her parents’ consent or, as the case may be, that of his/her guardian and with the consent of the Guardianship Court of the district in which the child is domiciled. If a parent refuses consent to the marriage, the Guardianship Court can decide on the matter, bearing in mind the child’s best interest. A married minor obtains full legal capacity.  

Again, if there are valid reasons, the Guardianship Court can recognise a minor’s full legal capacity in the case of a minor who has reached the age of sixteen years (Article 40 of the Civil Code– “anticipated” capacity).

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.

• A minor can conclude legal transactions related to work, artistic and sports activities, or his/her profession with the consent of his/her parents or guardian and in accordance with the provisions of the special law, as the case may be. In such a case, the minor exercises alone the rights and obligations resulting from such transactions and he/she can enjoy alone the income received (Article 42 of the Civil Code).
• On becoming able to work, at the age of sixteen years, the minor can conclude a work contract as employee, as well as at the age of fifteen years, with the consent of his/her parents or legal representatives, in respect of activities that are compatible with his/her physical development, skills and knowledge, provided that such activities don’t endanger his/her health, development and professional training (Article 13 of the Labour Code).
• The offer of a gift made to a person with limited legal capacity can be accepted by such person with the consent of the person in charge of his/her legal protection (Article 1013 of the Civil Code.).
• As a general rule, a minor without legal capacity or with limited legal capacity (“restricted”) cannot give away his/her property (gifts, wills), except in the cases provided for by the law. At the risk of relative nullity, even after a person has obtained full legal capacity, he/she is unable to gift or donate his/her property to a representative or a legal guardian before the Guardianship Court has not discharged the latter from their duties (except for the situation in which the representative or, as the case may be, the legal guardian is a relative in the ascending line of the minor disposing of the property) (Article 988 of the Civil Code)

The rule is that both parents exercise parental authority. As they both hold the rights and obligations in respect of the person of the child and its property, both parents exercise it equally (Article 483 (1) of the Civil Code).

If one of the parents has died, or has been declared dead by court decision, prohibited, deprived of his/her rights to exercise parental rights, or if such parent, for whatever reason, finds himself/herself unable to express his/her will, the other parent exercises parental authority alone (Article 507 of the Civil Code).

A minor is also protected by the establishment of a guardianship (Art. 104 and following of the Romanian Civil Code) by placement or, as the case may be, by other special protection measures expressly provided for by the law (Article 106 (1) of the Civil Code.)[1].

The Guardianship Court orders the establishment of a guardianship.

The procedures provided for in the Civil Code on the protection of minors fall within the jurisdiction of the Guardianship Court.

Several persons can be designated as guardians, without preference. Also, several members of the family, or friends of the minor’s family, can express their will and be able to perform guardianship tasks.

The Guardianship Court will decide taking into account their material conditions and their moral guarantees necessary for the child’s harmonious development (Article 115 of the Civil Code).

[1]                      At the national level, Law nb.272/2004 provides in art.59 for three special protection measures for children : placement, emergency placement and specialised surveillance. The authority in charge of supervising special protection measures is the General Direction for social assistance and the protection of children. (Law nb.272/2004).

3.1 What is the scope of the right of custody?

Parental authority comprises all of the rights and obligations relating to both the child’s person and property. Parental authority is exercised only in the child’s best interest, with the respect due to its person, involving the child in all decisions concerning it, taking account of its age and maturity. (Article 483 of the Civil Code).

A parent, who is a minor under the age of fourteen years, only holds the rights and obligations in relation to the child’s person. In such case, the rights and obligations relating to the child’s property are vested in a guardian or, as the case may be, in other persons, by virtue of the law (Article 490 of the Civil Code).

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)?

The court determines if it is in a minor’s interest to set up guardianship when both parents are, as the case may be : deceased, deprived of their rights to exercise parental authority, if a penal sanction has been imposed including a prohibition on parental rights, subject to judicial prohibition, legally declared dead or missing, as well as in the case of termination of an adoption (Article 110 of the Civil Code).

If one of the parents has died, or has been declared dead by court decision, prohibited, deprived of his/her rights to exercise parental rights, or if such parent, for whatever reason, finds himself/herself unable to express his/her will, the other parent exercises parental authority alone (Article 507 of the Civil Code).

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

The parent can designate the person to be appointed guardian to his/her children by unilateral act or by contractual mandate, entered into by notarial deed or, as the case may be, by will (Article 114 of the Civil Code).

When the guardian has been designated by way of a contractual mandate, the guardian may only refuse the appointment for the following reasons:

• he/she is older than 60 years;
• she is a pregnant woman or the mother of a child under the age of 8 years;
• he/she raises and educates two or more children;
• an illness, a disability, the nature of the activities carried out, the distance between the domicile and the place where the minor’s property is located or other reasons that would hinder him/her from performing this task (Article 120 subparagraph 2 of the Civil Code).

A guardian is appointed with his/her consent by way of a final judgment issued by the Guardianship Court (Article 119 of the Civil Code).

Article 111 of the Civil Code provides that, once the existence of a minor without parental protection in the cases provided for by Article 110 (see point 3.2) becomes known, the following persons immediately have to notify the Guardianship Court :

• persons close to the minor, as well as the managers and tenants of the building in which the minor resides;
• the civil registration office when recording a person’s death, as well as the notary public when opening succession proceedings;
• the courts when issuing a penal sentence denying (prohibiting) parental rights;
• local administrations, social welfare institutions and any other person.

3.2.2 Is the competent authority free in its choice of a new custodian?

The Guardianship Court is free to decide taking into account his/her consent, the child’s best interest, the material conditions and the moral guarantees required for the child’s harmonious development.

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)?

If several persons have been designated as guardians, without preference, or if there are several members or friends of the minor’s family able to perform guardianship tasks and if they wish to act as guardians, the Guardianship Court will decide taking into account their material conditions and moral guarantees required for the minor’s harmonious development (Article 115 of the Civil Code).

Guardianship is a personal task. However, the Guardianship Court can, with the consent of the Family Council and taking into account the size and composition of the minor’s assets, decide to entrust the administration of all the assets or, in accordance with the law, part thereof, to a natural person or, as the case may be, to a specialised legal person (Article 120 of the Civil Code).

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

Article 486 of the Civil Code provides that, whenever the parents disagree on the exercise of parental rights or obligations, it is up to the Guardianship Court to decide in accordance with the minor’s interests.

It is irrelevant whether the parents are married or not.

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

In principle, no. It is only possible in exceptional circumstances and on a temporary basis. In such a case, only certain aspects relating to the person of the minor (education) can be delegated to others.

For the protection of minors who have parents (or one parent only or a guardian) intending to go work abroad, the law provides for the obligation on the parents to designate a person, a member of the extended family, as temporary holder of parental authority in respect of the child for the period of their absence, but for less than a year. This voluntary designation has to be followed by a court appointment of the person designated to hold parental authority (Art. 104-106 of Law nb. 272/2004, as amended and re-published, on the protection of children).

3.4.1 Is the consent of all custodians to the transfer mandatory?

Yes.

3.4.2 Are there any restrictions to this type of power of attorney (for example the right of custody may not be transferred in its entirety?

The person designated to hold parental authority will be part of the child’s extended family.
For example, providing consent to the minor’s adoption or marriage remains the attribute of the initial holders of parental authority.
Aspects connected with the minor’s property remain the attribute of the parents (Art. 399 of the Civil Code) or the legal representative.

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

The notification of departure abroad, which necessarily contains the designation of the person holding parental authority, has to be made to the public social welfare service of the place of domicile. Acceptance has to take place before the judge.

The right to represent a minor is one of the attributes of parental authority. Thus, representation can be exercised by both parents, by one parent alone, or by persons appointed in the cases provided for by the law – a guardian (Article 143 and following of the Civil Code) or a special curator in certain cases governed by article 150 of the Civil Code.

Romanian civil law distinguishes between “designation” and “appointment” of a guardian. An appointment falls within the exclusive remit of the Guardianship Court. A designation can be made by way of mandate or unilateral act by notarial deed but, even in this case, the court will appoint the guardian on the basis of a legal decision.

Romanian law does not exclude there being several representatives (Art. 115 of the Civil Code). 

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)?

If the parents have not designated a guardian (as explained at point 4), the Guardianship Court shall appoint the guardian under the conditions set out in Articles 112 and 113 of the Civil Code.

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

The parents propose or designate the guardian by unilateral act or contractual mandate and the court can maintain this proposal or appoint another person to exercise guardianship.

Article 111 of the Civil Code refers to the persons under an obligation to immediately inform the court of the existence of a minor without parental care : persons close to the minor, as well as the managers and tenants of the building in which the minor resides; the civil registration office when recording a person’s death, as well as the notary public when opening succession proceedings; the courts when issuing a penal sentence denying (prohibiting) parental rights; local administrations,  social welfare institutions and any other person.

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

The tribunal appoints the guardian by taking into account the minor’s best interests and by respecting the provisions of Articles 112 and 113 (incompatibilities) of the Civil Code.

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

As a general rule, guardianship is exercised by one person or by both spouses. According to Article 135 of the Civil Code, if the guardians are spouses, they exercise guardianship jointly.  It is possible to designate several guardians, but the Guardianship Court will decide taking into account their material conditions and moral guarantees (Civil Code, Article 115).

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)?

Yes, these are legal transactions that necessarily involve the person entering into these transactions expressing his/her personal will, and which cannot be carried out by a representative, and which are incompatible with the requirements of consent:

• Article 403 of the Civil Code. – the minor can, alone and without consent, ask the Guardianship Court to amend  measures regarding the rights and obligations of divorced parents towards their underage children. 
• Article 463 subparagraph (1) b) of the Civil Code. –  consent to adoption if the child has completed 10 years of age or the request to terminate an adoption (Article 478 of the Civil Code).
• Article 417 of the Civil Code – an unmarried minor can recognise alone his/her child provided he/she has discernment at the moment of recognition.
• Article 264 of the Civil Code – hearing a minor in administrative or judicial proceedings concerning him/her.
• Article 490 of the Civil Code – an underage parent who has reached 14 years of age exercises parental rights alone, but only those relating to the person of the child.
• Article 491 of the Civil Code – a minor who has reached 14 years of age can choose alone his/her religion.

There are also some transactions that a guardian can never perform, not even following the opinion of the Family Council or with the consent of the court in charge of legal guardianship (such as other transactions that guarantee someone else’s obligation, legal transactions concluded between, on the one hand, the guardian, his/her spouse, a relative in direct line or the guardian’s brothers or sisters, and, on the other hand, 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 for both parents to have custody but for only one to have the right of representation in transactions with some property of a minor?

Representation of the minor is an attribute of parental authority. In principle, parental authority is exercised jointly by the parents, equally and exclusively (Article 503 subparagraph  1 of the Civil Code). Subparagraph 2 of Article 503 is a novelty in the Civil Code. It establishes a tacit mutual mandate between the parents, but only in respect of common transactions carried out by one of the spouses in the exercise of their parental rights.

4.2.3 Is it required that all legal representatives conclude 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)?

The reply to point 4.2.2 applies.

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, if the unmarried parents live together. If not, the Guardianship Court will decide on how parental authority is to be exercised.

4.2.4 Other restrictions for legal representatives:

4.2.4.1 Is it necessary that the transaction to be 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?

Civil transactions are concluded differently, depending on whether the minor has no legal capacity, or whether he/she has limited legal capacity. Thus, one has to distinguish between:

• legal representation of a minor who has not yet reached the age of 14 years (without legal capacity) ; in that case the restrictions on the guardian will differ, depending on the category of transactions:
  • transactions that can be concluded by the guardian of a minor under the age of 14 years acting alone, without prior consent – (see point 2.)
  • transactions that the guardian of a minor under the age of 14 years can only conclude with the prior consent of the Family Council[1]  and the Guardianship Court, failing which they would be subject to relative nullity (transactions of disposal, sharing, mortgaging or providing real estate guarantees and any other transaction beyond the right of administration);
  • transactions that the guardian can never conclude (see point 4.2.1.).
• legal representation of a minor who has reached the age of 14 years : a minor who has reached the age of 14 years can conclude legal transactions alone (see point 2.1.1) with the guardian’s prior consent or, as the case may be, that of the special curator[2].

[1]                      The Family Council is defined by the High Council of the Judiciary as the “consultation body (without legal personality) set up by the Guardianship Court, tasked with monitoring how the guardian exercises his/her rights and complies with his/her obligations in respect of the minor’s person and property.”

[2]                      Special curatorship exists along with parental authority or guardianship, and refers only to a specific legal transaction in relation to assets (that is, in the case of a conflict of interests between the guardian/legal representative and the minor).

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.

Transactions of disposal, sharing, mortgaging or providing real estate guarantees and any other transaction beyond the right of administration.

The transactions that a guardian of a minor under the age of 14 years can only enter into with the prior consent of the Family Council or the Guardianship Court, failing which they would be subject to relative nullity, are transactions of disposal, sharing, mortgaging or providing real estate guarantees and any other transaction beyond the right of administration.

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 is denied?

Consent is prior and the sanction is relative nullity.

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)?

According to Article 147 of the Civil Code, legal transactions concluded between, on the one hand, the guardian (or his/her spouse, a relative in a direct line, his/her brothers and sisters) and, on the other hand, the minor, are prohibited.

According to Article 1654 of the Civil Code, the parents, guardian, curator and temporary administrator are unable to buy the minor’s assets. As the sanction is relative nullity, the remedy can only be sought by the person protected by the legal provision : the minor. He/she can also confirm the transaction under the conditions set out in Article 1263 of the Civil Code.

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

According to Article 142 of the Civil Code, assets received by the minor free of charge are not subject to the guardian’s administration, unless the testator or the donor have provided otherwise. These assets are administered by the curator designated in the deed of disposal or, as the case may be, appointed by the Guardianship Court.

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

Rather no. In general, the aspects related to the person of the minor (education) can be delegated to others. The aspects related to the minor’s assets remain an attribute of the parents (Art. 399 of the Civil Code) or of the legal representative.

• With the birth certificate if the parents exercise parental authority ;
• With the final judgment of the court that has appointed the guardian.

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

No.

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

No.

Law nb. 248/2005 governing the free movement of Romanian citizens abroad provides in Article 2 (2) that “underage Romanian citizens can only travel abroad accompanied, with the consent of the parents or the legal representatives (…). By virtue of this law, the legal representative is the person designated in accordance with the law to exercise the parents’ rights and obligations towards the minor”.
In the case that the child travels with one of his/her parents, the declaration of consent of the other parent is required at the Romanian border. Exceptions : the parent to whom the child has been entrusted by final court judgment, or who exercises parental authority alone, can travel with his/her child without the other parent’s consent.

If the child travels with a person other than his/her parents, the consent of both parents, or that of the parent to whom the child has been entrusted by final court judgment, or that of the parent who exercises parental authority alone, is required.

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

The declaration containing the consent of the parents/parent/legal representative has to be in the form of a notarial deed.

The Romanian Civil Code : http://legislatie.just.ro/Public/DetaliiDocument/109884

       Civil Code

Part 1: Protective measures for adults with diminished capacity

In Romania, the protection of vulnerable adults was profoundly modified in recent times, with the entry into force of the Law no. 140/2022 regarding some protection measures for people with intellectual and psychosocial disabilities. This act was adopted following a Decision by the Romanian Constitutional Court which declared the judicial interdiction (judicial ban) to breach the constitutional guarantees of the rights belonging to disabled persons. Several mechanisms are now provided for, inspired by the promising principles circulated in the recommendations of the Committee of Ministers of the Council of Europe and in the resolutions of the European Parliament.

The newly regulated assistance was inspired from a similar concept found in a correspondent law from Québec, Canada, namely the Loi modifiant le Code civil, le Code de procédure civile, la Loi sur le curateur public et diverses dispositions en matière de protection des personnes, which is in application since November 2022. It involves an assistant appointed by the notary public, without the need for the person in question to be incapacitated in any way (art. 3 para. 1 of Law no. 140/2022). The measure concerns the adult who, due to an intellectual or psychosocial disability, needs support to take care of his person, manage his estate or to exercise his civil rights and liberties (art. 1 para. 1 of Law no. 140/2022).

The bulk of relevant regulations is however still included in the Romanian Civil code. According to its preliminary provisions, the protection of the adults takes place by ways of judicial counselling, special guardianship, curatorship, or other measures provided by law (art. 106 para. 2 of the Civil code). The principle is that if the deterioration of the mental faculties is only partial, but it is necessary for this person to be continuously advised in the exercise of his rights and freedoms, then he can benefit from judicial counselling (art. 164 para. 2 of the Civil code). The counselling may only be instituted if adequate protection cannot be ensured by appointing the previously mentioned assistant (art. 164 para. 3 of the Civil code). However, if the deterioration of the mental faculties is total and permanent, the law presumes that it is necessary for the adult to be continuously represented in the exercise of his rights and freedoms, by way of establishing a special guardianship (art. 164 para. 4 of the Civil code). The special guardianship may only be instituted if adequate protection cannot be ensured through assistance or the judicial counselling (art. 164 para. 5 of the Civil code). Both cases concern the adult who cannot take care of his own interests due to a temporary or permanent, partial or total impairment of his mental faculties, established following medical and psychosocial assessment, and who needs support in forming or expressing his will (art. 164 para. 1 of the Civil code). The court decision which establishes the protection measure shall also contain the appointment of a guardian or judicial counsellor (art. 170 of the Civil code).

In the above-mentioned legal reform, it is also provided that the person for which guardianship or judicial counselling was established can by himself validly provide consent for some legal acts, without further authorization requirements. This implies from the guardianship court an explicit determination of the acts for which representation or approval is required, after duly considering the autonomy of the person in question and his specific needs. The court can even state that the protective measure only concerns a given category of legal acts. Also, the court can order that the protection measure merely covers the personal issues of the adult in question or is only limited to his assets. In this case, establishing the measure does not affect the capacity of the protected person to conclude the legal acts for which the court has determined that the consent of the judicial counsellor or his representation by the guardian is not necessary (art. 168 para. 4 and para. 5 of the Civil code).

In addition to other cases provided by law, a curatorship may be instituted: a) if, due to old age, illness or physical infirmity, a person, although not incapacitated, is unable to personally manage his property or defend his interests and, for good reasons, cannot appoint a representative or an administrator; b) if, due to illness or other reasons, a person, although not incapacitated, is unable, either personally or through a representative, to take necessary measures in urgent matters; c) if a person has to be absent from home for a prolonged period of time and has not entrusted another person with powers of attorney or has not named a general administrator; d) if a person who has disappeared without leaving any information about his whereabouts has not entrusted another person with powers of attorney or has not named a general administrator (art. 178 of the Civil code). A special curatorship is also required whenever contrary interests that do not lead to replacement arise between an incapacitated person and his special guardian or judicial counsellor (art. 150 para. 1 of the Civil code). Same goes if due to illness or other reasons the special guardian or the judicial counsellor is prevented from performing a certain act on behalf of the person he represents or whose acts he approves (art. 150 para. 2 of the Civil code). In addition, until the settlement of the application for judicial counselling or special guardianship, the court may appoint a special curator for the care and representation of the person whose protection was requested, as well as for the administration of his assets (art. 167 of the Civil code).

Recognition of decisions or acts relating to protective measures issued by the authorities of other Member States

Part 2: Possibilities to anticipate a future loss of capacity

In principle, guardianship, curatorship and special counselling are instituted by court decision. However, the ward has the possibility to designate the person that is to be appointed in this quality. Any person with full capacity to act may appear before a notary to designate the person whom he or she wishes to have appointed by the guardianship court as their legal representative to take care of them and their property, if and when they may find themselves in a situation of incapacity. This covers both special guardianship and judicial counselling, for the person in question or for their children (art. 114, art. 166 and art. 170 of the Civil code). Same goes for designating a curator, if need may be (art. 180 para. 2 of the Civil code). This designation still requires however the person in question to be confirmed by the court in this quality. It may seem preferable to consent a protection mandate (lasting powers of attorney), as it has a wider legal framework (art. 166 para. 2 of the Civil code). However, this concept was only recently regulated through Law no. 140/2022 regarding some protection measures for people with intellectual and psychosocial disabilities and may need some accommodation time. This protection mandate is now regulated in articles 20291 to 202910 of the Romanian Civil code. For instance, it explicitly allows the mentioning of the wishes expressed by the vulnerable adult concerning his care and living conditions after the onset of incapacity (art. 20292 para. 1). Its clauses can also include a specific person called in to receive management reports from the designated legal representative over certain periods of time (art. 20292 para. 2). Notwithstanding this greater level of normative detail however, the content of this protection mandate is essentially the same as the designation of the legal representative provided for by the initial texts of the Civil Code.