Concerning guardianship. Guardianship is as Servius defines the term , authority and power over a free person, granted for the purpose of protecting him who, on account of his age, is unable to protect himself; and this authority is conferred or admitted by the Civil Law. Therefore they are styled guardians, being as it were protectors and defenders, just as those are styled guardians of a temple, who are charged with its care.
A minor should not be required to ask that a guardian be appointed for him, or to go in search of him. Where a male or female ward has a guardian, and becomes insane, he or she will still remain under guardianship while in this condition.
This is the opinion of Quintus Mucius, and was approved by Julianus; and we adopt the rule that curatorship shall cease where the age requires guardianship. Therefore, if wards have guardians, they are not, by reason of their insanity, placed under curatorship; and if they have none, and insanity should attack them, they can, nevertheless, have guardians, because the Law of the Twelve Tables is understood not to apply to wards of either sex.
We make this distinction in the case of a person whose age subjects him to curatorship or guardianship, and it is not necessary to appoint a guardian for him on account of his demented condition. This the Emperor Antoninus Augustus stated in a Rescript, since provision should be made for age rather than insanity, during a certain time. It should be remembered that a curator can be appointed whether a ward sues or is sued, but this cannot be done unless he for whom the curator must be appointed requests it.
Hence Cassius states in the Sixth Book that no one can be appointed a curator under such circumstances, unless he is present, and the party requesting his appointment is also in court. Therefore, a curator cannot be appointed for an infant. Cassius says that if a minor does not wish to ask for a curator, in order to prevent suit from being brought against him, he should be compelled to make application for one by the Praetor.
