The Italian figure of limited guardian ("Amministratore di sostegno", introduced by law n. 6/2004) has recently achieved new application through abundant case law which concedes the possibility, for the limited guardian, to take health care decisions regarding incapacitated adults, in accordance with their previously-advanced directive. However, Italian judges do not agree about the letter of the law, i.e. about legitimating such use of the limited guardian. For this reason, we now have a considerable number of judges" decisions allowing this possibility, and a similar number which deny it. Thus, it is important to examine the position of doctors when faced with both kinds of judges" decisions.

Among the duties of the "amministratore di sostegno" (from now: "limited guardian"), as indicated by art. 404 and following articles, civil code, as modified by law 9th January, 2004, n° 62, there certainly are health-care decisions, as agreed by almost all Italian legal doctrine3 as well as case law. Right from the first appointments of limited guardians, Italian judges have recognized the possibility, for the same, to surrogate the ward regarding not only their assets but also their personal care.

When it is necessary to give informed consent for medical procedures, the problem is not whether the limited guardian can or cannot take such decisions but, more specifically, whether they can oppose the ward"s desires.

In this matter, Italian case law is divided: some judges think that the limited guardian cannot totally surrogate the ward"s health-care decisions, especially when there is a divergence between the ward and the limited guardian (for this purpose it should be necessary to appoint a "complete" guardianship (interdizione)

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 Tratto da Translational Medicine @ UniSa, - ISSN 2239-9747 2011, Special Issues 1(1) 5th International Meeting - Dialogues on anaesthesia and intensive care (Napoli, 18-19 novembre 2011)

Vincenzo Durante (Department of Comparative Law -University of Padova)