Together against stroke. How to help a loved one recover

Is it necessary to obtain guardianship over an incapacitated person?

In accordance with Art. 31 of the Civil Code of the Russian Federation, guardianship is a way to protect the rights of incapacitated citizens. The guardian must represent the interests of the ward in the courts and government agencies.

Features of registration of guardianship:

• appointed exclusively voluntarily (the guardian must independently initiate the procedure);
• the guardian must meet the requirements established by family and civil legislation;
• the applicant must document compliance with the requirements;
• A guardian is not appointed if the incapacitated citizen is placed in a special institution.

Thus, the appointment of guardianship over an incapacitated person is a mandatory procedure. An exception is provided only for citizens who live in inpatient institutions for the disabled. In this case, the powers of the guardian are vested in the head of the institution.

If a citizen has relatives or other persons who wish to obtain guardianship over him, then they must go through the procedure established by law.

Rights and responsibilities of a guardian

The rights and responsibilities of a guardian in relation to the ward are closely intertwined, so they can also be called powers:

• representation of the interests of the ward in government bodies (for example, when conducting litigation in favor of the ward, registering disability, applying for social benefits or financial assistance);
• constant care (or organization of constant care, for example, by paying for the work of a nurse or nurse) for the ward;
• timely seeking medical help;
• receiving and managing the ward’s income (purchasing food, medicine, clothing and care products, paying bills);
• disposal of the ward’s property (with the permission of the PLO);
• submission of annual reports to the PLO on the disposal of the funds and property of the ward.

Types of guardianship over the incapacitated

In 2021, the law provides for the following types of guardianship over an incompetent person:

1. Free. The guardian receives no remuneration. The pension and other income of the ward are transferred to the nominal account of the guardian. He spends them to meet the needs of the incapacitated. The report on expenses made is carried out annually, until February 1.
2. Paid. Carried out on the basis of an agreement between the district administration and the guardian. As a remuneration, the guardian receives a certain amount from the pension or other income of the ward, which cannot exceed 5% of the total income.

How to obtain guardianship for a disabled person?

How to obtain guardianship of a child with living parents?

How to obtain guardianship over incapacitated people?

The trial to deprive citizens of legal capacity takes place with the mandatory participation of specialists from the guardianship department. After the court decision enters into legal force, the document is sent to the guardianship department. From this moment on, specialists must select a legal representative for the citizen.

Depending on the situation, the following may act as a guardian:

• relatives;
• strangers;
• head of a specialized organization.

The relatives of an incapacitated citizen have priority when choosing a guardian. But they must also express their desire and collect documents.

If you want to arrange guardianship for an elderly relative, you must follow the following procedure:

1. Collect documents.
2. Deprive of legal capacity.
3. Contact the guardianship department.
4. Receive a decision on the appointment of a guardian.

The procedure is carried out free of charge. There is no need to pay at any stage.

The duration of guardianship is calculated individually. On average, the procedure will take no more than 4 months.

Deprivation of legal capacity

The issue can be resolved exclusively in court.

You need to prepare the following documents:

• the patient's civil passport;
• outpatient card;
• medical documents confirming registration with a psychiatrist;
• petition for the appointment of a medical examination.

Important! The plaintiff must prove in court that the patient cannot understand the consequences of his actions. To do this, you need to collect all medical information. It is advisable to conduct an examination with a psychiatrist in advance.

The trial takes about 2 months (1 month for the preparation of the process and 1 month for the court decision to enter into legal force). A citizen may be declared incompetent if he has a mental illness or senile dementia (dementia).

List of documents for registration of guardianship

From the moment the court decision is made, it is necessary to begin collecting documents for the appointment of guardianship. The list is provided for by Decree of the Government of the Russian Federation of 2010 No. 927.

When registering guardianship over incapacitated citizens, the following categories of guardians are distinguished:

• relatives who lived with the incapacitated citizen for at least 10 years;
• other citizens.

For the first category, a preferential registration procedure is provided.

They must provide the following data:

• statement;
• document confirming marriage (if the applicant is married);
• passport;
• medical report on health status;
• information about kinship.

Only children, parents, brothers, sisters, grandchildren, and grandparents of the incapacitated person can be included in this category. A prerequisite is cohabitation for a period of at least 10 years.

The second category includes relatives who do not live with the potential ward, and strangers.

They must provide the following information to the guardianship department:

• passport;
• statement;
• autobiography;
• document on the conclusion of a marriage union;
• written consent of all members of the applicant’s family to register guardianship, aged 10 years or older;
• medical report;
• information about the level of income for the last 12 months.

Important! If a citizen is a non-working pensioner, then he does not provide information about income. The guardianship department independently orders a certificate from the Pension Fund.

All documents are valid for 1 year, and the medical certificate is only 3 months. This fact must be taken into account when preparing documentation.

Documents are submitted to the guardianship department at the place of registration of the guardian. But to appoint guardianship, you need to contact the department at the place of residence of the incapacitated person.

Sample consent of relatives for guardianship of an incompetent person: alt: Consent of relatives for guardianship of an incompetent person

Consultation on document preparation

Requirements for a guardian

The law makes a guardian responsible for the life and health of another person. Therefore, there are a number of requirements for the identity of the representative.

A citizen cannot:

1. Be deprived of parental rights, limited in them, removed from the duties of a guardian, deprived of the status of an adoptive parent for guilty actions in relation to the adopted child.
2. Have a criminal record against the life and health of citizens, for serious and especially serious crimes, outstanding convictions.
3. Have diseases provided for by Government Decree No. 117 of 2013.
4. Be registered as an alcoholic or drug addict.
5. Be married to an incapacitated citizen or to a person of the same sex.

The applicant must be of legal age and legal capacity.

His moral qualities are also taken into account. Although the law does not explain what exactly this is about. In practice, specialists from the guardianship department ask for references from neighbors or from their place of work.

Application for appointment of guardianship

The application can be submitted to the guardianship department at the place of registration of the incapacitated citizen in the following way:

• personally;
• by mail;
• through a representative;
• through the MFC;
• through the website of the guardianship department (if technically possible).

In a number of regions, it is possible to submit an application through the State Services electronic portal. This service must be specified individually for each subject of the Russian Federation.

For example, residents of Moscow can submit an application electronically, but residents of the Novosibirsk region cannot.

The law does not establish an application form for the appointment of guardianship over an incompetent person.

However, the document must include the following information:

• name of the municipality;
• applicant's details (full name, passport details, address, contact phone number);
• title of the application;
• request to be appointed as a guardian;
• information about the potential ward;
• information about the applicant's criminal record;
• details of the applicant's family members;
• additional information;
• permission to process the applicant's data;
• list of documents;
• date and signature.

Sample application for guardianship of an incompetent citizen: alt: Application for guardianship of an incompetent citizen

Consultation on document preparation

Are you tired of reading? We’ll tell you over the phone and answer your questions.

Guardianship of a bedridden patient

Expert opinion

Semyon Frolov

Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.

The rules and procedure for appointing guardianship and care for sick people are contained in several basic legislative acts of the Russian Federation:

• Civil Code of the Russian Federation (Article 29—deprivation and limitation of legal capacity, Article 31—appointment and implementation of guardianship and trusteeship, Article 41—patronage),
• Federal Law of the Russian Federation “On guardianship and trusteeship” No. 48 dated April 24, 2008,
• Rules for the selection and training of guardians,
• Rules for concluding a paid guardianship agreement,
• Rules for verifying the place of residence of guardians and respecting the rights of incapacitated wards,

provided for by Decree of the Government of the Russian Federation No. 927 as amended. dated 12/21/18.

Based on the provisions of the Civil Code of the Russian Federation, the following types of care for a sick relative are possible:

1. Guardianship and trusteeship - assigned to such patients who, due to illness, have lost the ability to understand and manage themselves, and who have been declared incompetent or partially capable by a court decision;
2. Patronage is assigned to such a seriously ill person who cannot take care of himself, but at the same time is of sound mind, is aware of what is happening to him, can make decisions, exercise rights and fulfill responsibilities.

Guardianship

Guardianship (custody) is appointed over a sick person who is deprived or limited in legal capacity if, due to illness, he has lost the ability not only to take care of himself, but also to be aware of what is happening, to manage himself, to make decisions, and to bear legal responsibility.

The guardian has the responsibility not only to care for the patient (serve his basic needs, purchase food and medicine, carry out medical prescriptions), but also to be his legal representative, represent his interests, protect his rights and fulfill obligations (pay bills, manage income, pensions and benefits).

Example After a serious traffic accident, 28-year-old Prokhorov V. lost the ability to move and take care of himself, as well as understand, communicate, and lead a conscious life. Before the accident, Prokhorov owned the enterprise, but now he could not make decisions or manage income. The patient's mother filed a lawsuit to declare her son incompetent, and then formalized guardianship.

Patronage

Patronage is a relatively new phenomenon in the country’s civil legislation. Sometimes this method of care is also called care due to illness, since it is often prescribed to seriously ill people, including bedridden patients, who cannot take care of themselves, but do not need care because they retain their sound mind, memory, ability to comprehend and make decisions, bear responsibility and fulfill obligations.

The duties of a home visiting assistant are only care, household assistance, shopping for groceries and preparing meals, and carrying out medical prescriptions. Unlike guardianship, patronage does not provide for legal representation of a sick person , protection of his rights and fulfillment of obligations, disposal of his income and property, since the sick person is not deprived of legal capacity. Such duties can be assigned to a foster assistant only by power of attorney (clause 3 of Article 41 of the Civil Code of the Russian Federation).

Example A patient with diabetes, Ryabova O., lived with her adult daughter Klimchuk R. A complication of the disease caused an operation, after which the patient could only move in a wheelchair and needed constant care. At the same time, Ryabova O. did not lose her legal capacity - she continued to work from home, manage her earnings and social benefits. The guardianship and trusteeship authority appointed the daughter, Klimchuk R., as the patient’s patronage assistant.

Conditions for appointment of patronage:

1. Deprivation or restriction of legal capacity in court does not occur;
2. The bedridden patient must give written consent to the appointment of patronage;
3. The patronage assistant must also give written consent (clause 2 of Article 41 of the Civil Code of the Russian Federation);
4. The requirements for a patronage assistant are not as high as for the personality of a guardian or trustee. As a rule, it becomes a close relative, neighbor, friend, or other caring loved one. The only restriction is that he should not be a social service worker (clause 2 of Article 41 of the Civil Code of the Russian Federation);

Question

What is the difference between a patronage assistant, appointed by decision of the Guardianship and Trusteeship Authority, and a relative who, without appointments or orders, performs this work: visits the patient, brings food, prepares food, cares for him?

Answer

The difference is that an officially appointed patronage assistant can receive an additional payment of 1,200 rubles and work experience for the entire period of caring for a bedridden patient.

Is guardianship always necessary for a bedridden patient?

So, even a severe painful condition and inability to move is not yet a basis for assigning guardianship. The only basis is the loss of the ability to understand and direct oneself, established in court, and the incapacity of the sick person recognized by the court.

Question My father suffered from a work accident and is now immobilized and needs constant care. But his mind and memory are intact. Should I take custody of my father in order to receive a pension, insurance payments, or have a legal dispute with my employer regarding compensation for injury to health?

Answer

If there are no grounds for depriving a sick person of legal capacity, then there are also no grounds for appointing guardianship. A person who has retained his mind, the ability to realize, make decisions, and bear responsibility, can transfer part of his own rights and powers to another person - by issuing a power of attorney certified by a notary.

If a sick person does not need representation (in courts, banks, institutions), but only needs household services, patronage may be assigned to him. The health visitor will perform all the day-to-day duties of the guardian, except for legal and representative duties.

If a sick person needs constant medical supervision, as well as constant medical care and maintenance, he can be placed in an institution where care and support for the life of bedridden patients is organized.

What happens if you do not arrange guardianship for a bedridden patient?

Depriving a sick person of legal capacity and placing him under guardianship or trusteeship is a right, not an obligation, of relatives . And sometimes this is really justified, for example, if a person is seriously ill or injured, and the procedure for registering guardianship will take time, effort, and money from relatives who must take care of him.

However, we must remember that not only relatives, but also...

• representative of the Guardianship and Trusteeship Authority (TPA);
• representative of the medical psychiatric organization where the patient is located
• representative of a social organization for patients suffering from mental disorders.

If the patient is nevertheless declared incompetent by a court decision, but none of the relatives wants to take on guardianship responsibilities, 30 days after the court decision enters into force , a representative of the POO or the organization where the sick person is being treated or observed will be appointed as a guardian.

Legal consequences of refusal of relatives to formalize guardianship:

• 75% of the patient’s income (pension, social benefits, compensation) are transferred to the account of the guardianship organization, 25% - to the patient’s personal account;
• the head of the organization can dispose of the remaining income and property of the ward - with the permission of the PLO;
• the patient’s relatives do not have the right to receive and dispose of the patient’s income;
• relatives retain the right to meet and interact with the patient, but care and servicing of his needs is entrusted to the guardianship organization;
• relatives retain the right of inheritance after the death of the patient, except in cases where they are recognized as unworthy heirs.

Payments and benefits to the guardian of an incapacitated person

Guardians of incapacitated persons do not enjoy federal and regional benefits.

At the same time, they have the right:

1. To receive a monthly payment from the Pension Fund of the Russian Federation. If the ward is over 80 years of age or is a disabled person of group 1, then the Pension Fund, at the request of the guardian, monthly transfers 1200 rubles together with the ward’s pension.
2. To receive a reward. At the request of the guardian, the guardianship department may enter into an agreement for the performance of duties for a fee. The amount cannot exceed 5% of the ward’s total income. As a rule, the only income of the incapacitated person is a pension.
3. To obtain benefits and subsidies that are intended for the ward. If a disabled person has the title of Labor Veteran, Honorary Donor or other titles, then he is entitled to benefits. If the guardian lives in the ward’s apartment, he can apply for a subsidy for utilities.

Thus, having lost legal capacity, a citizen is not deprived of state and regional benefits. But the responsibility for their execution is transferred to the guardian.

A course towards positivity

We also try to give physical exercises the form of a game. Helping her do exercises or massaging her back, I invite her to sing with me, repeat nursery rhymes, counting rhymes, and tongue twisters after me.

And the other day we started washing a crystal chandelier: my mother is able to wash its parts with her left hand. Our immediate plans are to knead the dough and bake pies. But we would not have come to this if we had not had all the preparatory classes. Now my mother’s left hand has taken over the function of her right hand and is already coping with it successfully!

Article on the topic

Life after a stroke. How should rehabilitation proceed?

And of course, it is very important that a person recovering his health has the opportunity to communicate with his friends - by phone and in person. Even if my mother’s friends call and come at a time that is not most convenient for us, we are always happy to see them. I get a chance to take a break, and for mom it’s a joy!

And in general, more joy, smiles, a kind and positive atmosphere in the house where a person who has suffered a stroke is recovering! This is the most important rule!

Control over guardians of incapacitated citizens

From the moment guardianship is appointed, guardianship department specialists must monitor how the citizen fulfills his duties.

The law provides for the following options for checking guardians:

1. Personal supervision. Carried out in the form of scheduled unscheduled inspections at the place of residence.
2. Documentary checks. Every year, before February 1, the guardian submits a report on the safety of the property of the incapacitated person.

The procedure for carrying out personal checks varies depending on the status of the guardian:

• relatives who lived with the ward for at least 10 years - once every 1 year and then once every 3 years;
• other citizens - once within 30 days from the date of the order, in the first year - quarterly, subsequently - once every six months.

If a signal is received about improper performance of duties, specialists can visit the family outside captivity. For this purpose, a special order is issued.

How to refuse guardianship of an incapacitated person?

The guardian performs his duties on a voluntary basis. In the event of a change in life situation (illness, job loss, divorce) or a bad relationship with the ward, the guardian can issue a refusal. To do this, you need to contact the guardianship department at the location of your personal file. The guardian submits an application in which he requests release from duties.

On the one hand, he is not obliged to explain the reasons for his decision. On the other hand, experts will probably ask him to do this. Since the decision to perform the duties of a guardian is entirely voluntary, no one can force a citizen to maintain his status.

The law does not provide for setting a specific deadline for making a decision. Therefore, after accepting the application, the local government body must urgently issue an act on the release of the guardian.

At the time of submitting the application, the citizen must:

• submit all original documents of the ward;
• submit an order for appointment as a guardian and a certificate;
• submit a report for the past period (but no later than 3 days from the date of receipt of the release order).

From the moment the order is received, mutual rights and obligations between the guardian and the ward cease. An incapacitated citizen comes under the supervision of the district guardianship department.

Requirements for a guardian of a bedridden patient

Question Is it true that a caregiver must have the skills to serve or care for seriously ill people who are unable to walk?

Answer

No that's not true. A guardian is not a nurse or an orderly, but a legal representative of a sick person, although, as a rule, a guardian is more concerned about the everyday than the legal needs of the ward: food, cleanliness, medicine and medical prescriptions.

But, since caring for a bedridden patient, who, moreover, is not aware of what is happening and is not responsible for his own actions and words, is hard and thankless work, the guardian must have high moral qualities: patience, endurance, sensitivity.

When deciding on the appointment of guardianship over a bedridden patient, representatives of the PLO evaluate, not least of all, the character of the guardian.

In addition, the following requirements are imposed on guardians (according to Article 35 of the Civil Code of the Russian Federation, Article 10 of the Federal Law “On Guardianship...”, “Rules for the selection and training of guardians...”):

• capacity;
• age of majority;
• availability of a permanent place of residence (own or rented living space);
• no criminal record;
• absence of diseases for which guardianship or guardianship is contraindicated (mental, oncological, infectious diseases);
• no cases of removal from guardianship duties, deprivation of parental rights, or cancellation of adoption due to the fault of the guardian.

Guardianship can be appointed solely with the consent of the guardian , which is expressed in the submission of a written application for the appointment of guardianship - this is another mandatory requirement (Clause 2 of Article 11 of the Federal Law “On Guardianship...”). No one can be forced to perform guardianship duties.