Establishment of patronage, guardianship and trusteeship

Consulting lawyer › Family law



Send

• Full guardianship of an elderly person
• How is guardianship arranged?
• What is meant by patronage?
• Features of concluding a patronage agreement

Only the state body for guardianship and trusteeship can establish guardianship over an elderly person, and only in case of a positive decision. Moreover, guardianship is allowed in two types - in the form of patronage and guardianship over an elderly person with the right to make full decisions for him. Let's try to understand these concepts and what exactly should be done in each case.

Who is recognized as incompetent or not fully capable?

If a person, due to some mental illness, is unable to understand the meaning of the actions he performs, as well as to control his actions, such a person may be declared incompetent.

If a person who is addicted to gambling, has a drug or alcohol addiction, causes material damage to the family through his actions, such a person may be recognized as partially incompetent.

Only a court can recognize a citizen as incompetent or partially capable in the manner established by the civil procedural code.

What is patronage?

Patronage is established over an adult capable citizen in the event that due to his health condition he cannot fully exercise his rights and responsibilities.

Such a citizen may be assigned an assistant by the relevant authorities. The assistant is appointed voluntarily, i.e. with the consent of the assistant himself, as well as with the consent of the citizen over whom patronage is established.

All actions of the assistant within the framework of patronage will be carried out in accordance with the agency agreement concluded between him and the citizen or the property trust management agreement. Upon expiration of such an agreement, patronage is terminated.

The guardianship and trusteeship authorities are obliged to control all the actions of the assistant performed by him in the interests of the citizen over whom patronage is established.

Guardianship and trusteeship bodies: functions, tasks and powers

The guardianship and trusteeship body is a local executive body of a certain subject of the Russian Federation.

The main tasks that the guardianship and trusteeship body is obliged to perform are as follows:

• protection of the rights and legitimate interests of citizens under guardianship, trusteeship and patronage;
• control over the activities of guardians, trustees and assistants, as well as over organizations to which incapacitated citizens may be sent;
• supervision over the safety of the property of citizens under guardianship and trusteeship.

The guardianship and trusteeship body, within the powers assigned to it:

• identifies those people who need guardianship/trusteeship/patronage;
• carries out the procedure for establishing guardianship/trusteeship;
• conducts inspections of the activities of guardians/trustees;
• appoints (selects, trains) or removes guardians/trustees/assistants;
• gives permission to carry out transactions with the property of citizens under guardianship/trusteeship;
• checks the living conditions of the wards.

Legislation

The basis of the legislation that regulates guardianship and trusteeship of children and minors is, of course, the Civil Code of the Russian Federation. He, in particular, the provisions of Art. Art. 31-40, defines the general conditions for establishing guardianship, the subjects over whom guardianship can be formalized, fixes the functions of the guardian and the powers of the guardianship authorities, the rights and obligations of the subjects, as well as the procedure for terminating guardianship.

An equally significant place in the system of regulatory legal acts is occupied by the Family Code of the Russian Federation, where an entire Chapter 20 is devoted to guardianship of minors. It contains requirements for persons wishing to take on guardianship functions, and also clarifies the rights and obligations of the parties.

The central place in this system is also occupied by the Federal Law of April 24, 2008 No. 48 “On Guardianship and Trusteeship”, which specifies the powers of the guardianship authorities, clarifies the legal status of guardians and the rules for registering guardianship, establishes the legal regime of the property of the ward, the responsibility of persons acting guardianship functions, as well as rules for terminating guardianship.

One should not lose sight of the Decree of the Government of the Russian Federation of May 18, 2009 No. 423, concerning certain issues of child guardianship. The document, in particular, approved the “Rules for selecting candidates for guardianship,” “Rules for checking the living conditions of the guardian and subsequent verification of compliance with guardianship duties,” as well as the form of the guardian’s financial reporting.

Who can be a guardian (trustee)?

Only adults with legal capacity can be appointed as guardians (trustees). In addition, the personal and moral qualities of the guardian and his relationship with the ward are taken into account.

A prerequisite is the consent of the guardian (trustee) to fulfill such duties. Close relatives of a citizen (child) have a priority right to become guardians (trustees) for him.

A person deprived of parental rights, or if he has a criminal record for a deliberate crime against the life and health of citizens, cannot be appointed as a guardian (trustee).

Guardians and trustees perform their duties free of charge, with the exception of the case when the Guardianship and Trusteeship Authority, acting in the interests of the ward, can conclude an agreement on the performance of duties with the guardian (trustee) for a certain fee.

The established fee can be allocated from income received from the property of the ward, or from local budget funds.

Instead of the established fee, the guardianship authority may allow the guardian to use the property of his ward free of charge.

The basis for establishing guardianship (trusteeship) is the Act of the guardianship authority. This act may indicate the period for which guardianship is established. The actions that a guardian (trustee) has the right to perform in the interests of his ward may be indicated.

How is guardianship arranged?

If you want to arrange guardianship for an elderly person, you should first contact the board of trustees at his place of residence and get advice from a curator. He will tell you about the rights and responsibilities, the documents that will be needed to allow guardianship over a pensioner.

It will take about 30 days to coordinate and collect all the documentation; everything is transferred to the curator. But the oldest person also needs documentation:

• a certificate from the pension fund about the amount of old-age security;
• photocopy of a general passport;
• a court decision or conclusion of the board of guardians recognizing the pensioner as an incompetent citizen;
• photocopy and original certificate of ownership of the residential premises.

Draw your attention to! This activity is carried out exclusively on a good basis, and government bodies exercise intense control over the guardian and his actions in relation to his ward.

The supervisory department or curator can check at any time and determine whether all actions are being carried out in the interests of the ward, his wishes and whether the guardian is offending him. The legislation directly vests inspectors with special powers; they have the right to:

• Check living conditions and provision of everything necessary in the amount of pension benefits.
• What kind of food does he eat, are there any complaints about the preparation.
• Does he receive full medical care and consultation from a local doctor as prescribed for older people?
• Checks all expenses against cash receipts and compares them with the pensioner’s allowance.
• Controls the safety of property and bank savings.

Monitoring may be frequent at first, and when neighbors call, law enforcement agencies may also be involved if there is reason to suspect that an elderly person is being treated poorly. In this case, the curator calls a special service, and the ward is sent to a nursing home, but such actions require strong evidence.

And if an elderly person is already 80 years old, then the guardian can count on an additional increase to his old age pension. But if guardianship is established for a disabled person since childhood, he will receive a benefit from the state in the amount of 5.5 thousand rubles. But individual regional authorities can themselves set the amount of this benefit, either up or down. Take advantage of a more detailed legal consultation for free by phone.

Disposal of the ward's property

The property of the ward is transferred to the guardian (trustee) according to the inventory drawn up by the guardianship authority. The guardian is obliged to take care of the ward’s property, protect it, and help it generate income.

The guardian (trustee) has the right to dispose of the income of the ward (pension, alimony, social benefits, etc.) only in the interests of the ward himself and only with the permission of the guardianship authority.

The exception is the monthly expenditure of funds in the amount of the subsistence minimum for the maintenance of the ward. For these amounts, permission from the guardianship authority is not required.

All transactions with property (transactions on the alienation of property) - sale, exchange, lease, donation, pledge, etc. require permission from the guardianship authority.

If the ward has real estate or expensive movable property and it needs management, the guardianship authority can conclude a trust management agreement for this property with the manager appointed by it.

The manager also does not have the right to make transactions with property without the prior permission of the guardianship authority.

Appointment of a guardian (trustee) for a child

The legislation establishes the following grounds for appointing a guardian (trustee) for a child:

• the child's parents died;
• the child’s parents were deprived (or limited) of parental rights;
• the child’s parents are recognized as legally incompetent;
• the child’s parents have been seriously ill for a long time, and this leads to the fact that they cannot support and raise their child;
• if the child’s parents are absent for a long time (for example, long business trips);
• parents refuse to raise and support their children;
• if parents, by their actions or, on the contrary, by inaction, create a threat to the life and health of their children, interfere with their development and upbringing;
• The child’s parents themselves have not reached the age of 16.

A guardian (trustee) for a child is appointed by the guardianship and trusteeship authority at the child’s place of residence.

In addition to general restrictions on the circle of persons entitled to become a guardian, the Family Code establishes additional restrictions regarding guardians (trustees) of minor children.

The following cannot be appointed as guardians (trustees) for a child:

• persons with deprivation or restriction of parental rights;
• convicted persons;
• patients with alcoholism or drug addiction;
• those who were previously a guardian, but were removed from their duties;
• former adoptive parents, if the adoption was canceled due to their fault;
• persons who, due to health reasons, cannot fulfill the responsibilities of raising a child.

A guardian or trustee is obliged to educate his ward, take care of his health, physical, spiritual, moral and mental development.

The method and form of raising a child under guardianship or guardianship is chosen by the guardian independently, but the opinion of the child, advice and recommendations of the guardianship authority must be taken into account.

The guardian (trustee) can choose an educational institution for the ward, but in any case he is obliged to ensure that the child receives a general education.

A child under guardianship has the right to communicate with his parents and other relatives, and the guardian or trustee has no right to interfere with this (unless, of course, this is contrary to the interests of the child).

Guardians of minor children must assist their wards in exercising their rights and fulfilling their duties, as well as protect them from abuse by third parties.

Children under guardianship (trusteeship) have the right to:

• living in the family of a guardian (trustee);
• care and upbringing, education, development, respect from the guardian;
• communication with parents and other relatives;
• expressing their opinion when resolving issues affecting their interests.

Children under guardianship (trusteeship) retain the right of ownership or right of use to residential premises. If they do not have housing, they have the right to receive it in accordance with housing legislation.

Children under guardianship or trusteeship are entitled to state support.

At the federal level, the following payments are provided in 2014:

• one-time benefit when establishing guardianship - 13,742 rubles for each child;
• monthly allowance for maintaining a child under guardianship until he reaches the age of one and a half years is 2,576 rubles for caring for the first child and 5,153 rubles for caring for the second and subsequent children.

In addition to federal payments, each subject of the Russian Federation provides:

• monthly payments for the maintenance of children under guardianship (trusteeship) until they reach the age of 18 years (or until they graduate from universities);
• additional benefits, cash payments or in-kind assistance.

Detailed information on each subject of the Russian Federation can be found by contacting the “Consultations” section on our website.

You might be interested in the mind map “How to get a subsidy for utility bills.”

Or see HERE how to get maternity benefits.

Responsibilities of a child's guardian

According to Art. 15 Federal Law No. 48 dated April 24, 2008, the guardian of an individual is his legal representative. Thus, the legislator requires the guardian to fully and comprehensively protect the rights and interests of the ward, which includes:

• representation of the interests of the ward in relations with any entities without any special powers;
• living together with the ward;
• care for its maintenance, provision of necessary care, treatment and medications;
• care for the physical, mental, spiritual and moral development of the ward;
• care for the upbringing and education of the ward;
• notification to the competent authorities of a change of residence;
• conscientious management, protection and disposal of the property of the ward.

The conditions of child guardianship established by Art. 36 of the Civil Code of the Russian Federation, require the guardian to perform his functions taking into account the opinion of the ward. In this case, the guardian can independently choose the methods of upbringing and educational institutions and has the right to assistance in obtaining medical, legal, social or other assistance he needs.

We recommend that you familiarize yourself with the rights and responsibilities of a guardian in more detail.

Termination of guardianship and trusteeship

Guardianship and trusteeship are terminated in the following cases:

• if the guardian (trustee) or the ward himself has died;
• if the duration of guardianship was specified, then after the expiration of this period;
• if the warded citizen is recognized as fully capable;
• upon removal or release of a guardian (trustee) from performing duties.

In addition, guardianship of minor children is terminated in the following cases:

• When a minor turns 14 years old, guardianship ends; when a minor turns 18 years old, guardianship ends;
• if a minor marries, then guardianship is terminated;
• guardianship over a child whose parents have not reached the age of 16 terminates when his parents reach the age of majority;
• if the minor is returned to his parents or adopted;
• if the ward is placed in a special institution (boarding school, medical institution, etc.).

Procedure for registering guardianship

The procedure for registering guardianship of a child is determined by the provisions of Art. 145 of the RF IC, the provisions of Art. Art. 10-11 Federal Law No. 48 dated 24.04.2008, as well as the “Rules for the selection, recording and training of potential guardians”, approved by Decree of the Government of the Russian Federation dated 05.18.2009 No. 423. Based on the norms contained in the documents, a person who has expressed a desire to take on guardianship functions, you need:

1. Contact the competent authorities and find out what is needed to obtain guardianship of a child.
2. Collect the necessary documents and apply for guardianship.
3. Complete a survey of living conditions.
4. Receive a certificate of inspection of housing and living conditions.
5. Obtain an opinion on the possibility of being a guardian.
6. Select a child using a federal data bank (in case of receiving a conclusion on the possibility of being a guardian if guardianship is being issued in relation to an unfamiliar minor).
7. Arrange for guardianship of the child.

Let's look at the most significant points in more detail.

Where to apply

To find out where to register guardianship, you must refer to clause 2 of the “Rules for the selection, registration and training of guardians”, approved by Decree of the Government of the Russian Federation of May 18, 2009 No. 423. According to it, these functions are assigned to the guardianship authorities.

The selection and training of guardians can be carried out by educational, medical and social organizations that are vested with the powers of guardianship authorities, but only the latter have the right to make the final decision.

Before becoming a guardian of a child, you must submit an application to the guardianship authorities at your place of residence, the form of which is not established by law. This means that the law allows for the submission of an application in free form, but it is much more correct to ask for a sample from the guardianship authorities. In addition to the application, the candidate to perform guardianship functions must submit a package of documents established by law.

Package of documents

To find out what documents are needed to obtain child custody in 2021, we recommend that you refer to clause 4 of the above Rules. According to it, along with an application, a citizen who wishes to become a guardian submits to the guardianship authorities at his place of residence:

• a certificate from the place of employment indicating the salary and position held;
• an extract from the house register or other confirmation of the use of the residential premises indicating the personal account;
• a police certificate confirming no criminal record;
• a medical report issued in the manner established by order of the Ministry of Health dated June 18, 2014 No. 290n.;
• a copy of the marriage certificate if there is one;
• written consent of adult family members living with the candidate, reflecting the opinion of everyone who has reached 10 years of age;
• autobiography;
• a document confirming completion of special training;
• a copy of the pension certificate (for pensioners).

The specified list of documents for registration of guardianship and trusteeship of a child in Russia is exhaustive. It can be submitted by the candidate in person, through the Public Services Portal, the official Internet representation of a specific guardianship authority, as well as the territorial MFC.

All documents requested at the request of the guardianship authorities are accepted within a year from the date of issue, with the exception of a medical report, which is accepted only within six months.

Timing and result of consideration

According to paragraph 8 of the above Rules, within 3 days after submitting documents, guardianship authorities are required to conduct an examination of the living conditions of the person who wishes to formalize voluntary guardianship. Its results are drawn up in the form of a report within 3 days from the date of conduct, after which, also within 3 days, they are sent to the candidate. Based on this act and taking into account the documents submitted by the guardian, within 10 days from the moment they are submitted, the guardianship authority is obliged to make a final decision, which either assigns guardianship functions (determines the possibility of being a guardian) to the candidate or denies them. The said decision is formalized in an act.

Thus, making a final decision will not take more than 10 days from the date of submission of documents. It will take much more time to select a child and get to know him.