Guardianship folly: the misgovernment of parens patriae and the forecast of its crumbling linkage to unprotected older americans in the

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The XII Tables recognized cura furiosi, lunatics capable of lucid moments, and gave their paternal family guardianship.57 Similar protection was also extended to all cases of mental incapacitation, even when permanent.58 Both within and without the XII Tables, the curator's functions to care for the lunatic's person were similar to an infant's tutor, and the XII Tables empowered the curator to alienate the lunatic's property for administrative purposes.59

However, even during the Roman Empire, guardianship admin- istration was problematic. Generally, the tutor was required to act in a business-like manner, but was sometimes required to act con-

  1. See id.

51. See id. at 142–43.

52. See id. at 150–53.

53. See id. at 150–51.

  1. See BUCKLAND, supra note 31, at 151.

  2. See id. “A curator is appointed meanwhile, . . . a tutor is appointed.” Id. at 151


  1. See supra notes 54–55 and accompanying text.

  2. See BUCKLAND, supra note 31, at 168.

  3. See id.

  4. See id. Thus, the actual care of the person of the cura furiosi was only a fiction

in order to gain control over property. See id.
trary to the manner of one acting carefully in his own interest.60 Yet, the entitlement to sell without any requirement to consider the ward's interests resulted in an inefficient system. Inherent conflict between ward and tutor made it difficult to apply to the ward's per- sonal needs.

Constantine tried to correct the problem by forbidding the tutor to sell urban or suburban property or valuable movables except un- der justifiable circumstances.61 The tutor had to take immediate steps to recover debts due the ward, bring and defend actions on behalf of the ward, and invest money within a certain time-frame.62 Constantine held the tutor liable for interest if he unreasonably delayed or used the money personally.63 The change in the tutela concept applied these administrative rules to the ward's interest.64 The ward's interest then assumed a primary role, but the interest was almost unreasonably safeguarded.65

Contracts, however, remained more personal in nature.66 In early classical law, the tutor's contract was his own and enforceable only by or against him.67 The ward had neither right nor liability, but the tutor's liability could come before the tribunal.68

The tutor's administrative care varied throughout Roman histo- ry.69 The tutor's infamous actions were restricted only for gross neg- ligence, which was a difficult evidentiary matter to prove.70 At one time the tutor was required to manage the ward's property with the same care he maintained for his own affairs.71 Some text, disputed among lawyers, imposed liability for all negligence.72 Acts resulting from the tutor's plunder were void and a cause of action existed for

  1. See id. at 154.

  2. See id. Under Justinian, the conveyance was void unless five years from full age lapsed. See id. at 154 n.8. Constantine allowed one year. See id.

  3. See BUCKLAND, supra note 31, at 154.

  4. See id. at 154 n.12.

  5. See id. at 154.

  6. See id.; see also Brakel & Rock, supra note 12, at 2.

  7. See BUCKLAND, supra note 31, at 155.

  8. See id. For example, if A lent B's money, B acquired a condition but B did not acquire any potential subsidiary obligations. See id. at 156. This was also true if A was B's tutor and it was not beneficial. See id.

  9. See id. at 155.

  10. See id. at 156.

  11. See BUCKLAND, supra note 31, at 156–57.

  12. See id. at 157.

  13. See id.

damages.73 Property gifts by the tutor, and transactions between the tutor and his ward, were void.74 However, the tutor's administration was limited to property and the ward's other necessities fell within the curator's functions.75
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