Guardianship requirements

With the 7 November 2025 ruling, the Court of Milan clarified the requirements for guardianship.

The case: Tizio filed an application requesting the appointment of a guardian for his mother, Mevia, arguing that she was hospitalized at the nursing home and that she had certain medical conditions, as identified in a 2011 medical-legal report. He requested the appointment of a third party outside the family unit due to disagreements with his sister, Caia.

Mevia, through her attorney, contested her son's claim and requested the appeal be dismissed, given the lack of legal requirements for initiating the measure and the medical documentation submitted, which attested to the mother's mental clarity and full capacity for self-determination despite her age. In the alternative, he requested the appointment of his daughter, Caia.

The latter appeared in the proceedings, supporting the mother's conclusions and arguing that the true reason behind the appeal concerned her brother's pressing financial demands regarding his share of the paternal inheritance and the maintenance and management costs of a property located in the countryside.

The Court preliminarily noted that:

a) the conditions for establishing the legal protection measure of guardianship requested by the applicant in favour of Ms. Mevia were not met;

b) and indeed, although the beneficiary was an elderly person suffering from pathologies, it had to be ruled out that these pathologies currently significantly impacted her cognitive, volitional, and decision-making abilities: it was noted that she does not have an altered state of consciousness, no memory deficits, no language or communication disorders, no anxiety or panic attacks, no delusions, no sleep disorders, no wandering, and does not use restraints; the multidimensional assessment of the facility indicates a current MMSE of 25/30 and that "she is perfectly lucid, shows no signs of irritability, and shows no signs of motor restlessness."

In light of these findings, the Court, in rejecting the application, clarifies that:

1) regarding guardianship, the assessment of whether the legal requirements are met, in line with the directions contained in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities, must be carried out specifically and in detail with respect to both the beneficiary's impairment—the contrary will of which, if expressed by a lucid person, must be taken into consideration by the judge—and the impact of such impairment on the beneficiary's ability to provide for his or her personal and financial interests, verifying the concrete possibility that these needs can also be met with other tools, such as, for example, making use, in whole or in part, of a system of delegations or an adequate family network;

2) While guardianship does not require a person to be in a state of actual mental incapacity, it nonetheless implies that the person, due to an infirmity or physical or mental impairment, is unable, even partially or temporarily, to provide for his or her own interests. Recourse to guardianship is ruled out for those who are fully capable of self-determination, despite physical impairment, for the purposes of alleged asset management needs;

3) It follows that, unless caused by a serious mental illness that renders the interested party unaware of the need for assistance, their opposition to the appointment constitutes an expression of self-determination, which must be appropriately considered;

4) In this case, the documents do not even reveal any reckless economic transactions that could serve as indicators of a loss of contact with economic reality: the issue of payment of expenses relating to the properties designated as "countryside" by the parties, which are the subject of a loan for use agreement, does not constitute adequate grounds for establishing a protective measure. This measure, as is known, is intended to provide vulnerable individuals with support in managing their personal and financial affairs, but is not intended to safeguard the economic interests of other parties, or future inheritance interests, or the preservation of assets.