Article 32 of the Civil Code of the Russian Federation. Guardianship (current edition)

Grounds for establishing guardianship

The responsibility to identify children without parents rests with all citizens of the country. Every person or official who learns about the lack of guardianship of a minor is required to report information to the district guardianship department, the municipal KDN and ZP or the body responsible for education (committee or education department).

The Family Code provides for a three-day period for verifying the information provided. When the data is confirmed, responsibility for the life and health of the minor rests with the guardianship department.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

In accordance with Art. 122 of the RF IC, officials are obliged to resolve the issue of the future placement of the baby within one month. The priority option is to transfer it to a family of Russian citizens. If there are no candidates for foster care of a minor, he is subject to placement under supervision in a boarding school for orphans, an orphanage or an orphanage. The institution is a temporary form of education. The search for suitable candidates continues until the child reaches adulthood.

The right to care in a family setting is enshrined in the Constitution of the Russian Federation. Information regulating the rights and responsibilities of citizens who want to raise a child, candidates, guardians, adoptive parents, specialists from guardianship departments, employees of orphanages is contained in the Family Code of the Russian Federation, Government Decree No. 423 of 2009, Government Decree No. 432 of 2009, Federal Law No. 48 “On guardianship”, order of the Ministry of Education and Science of the Russian Federation No. 101 of 2015 and other regulations. Guardianship powers have been transferred by the state to municipalities.

Who can have guardianship over?

Based on Art. 32 of the Civil Code of the Russian Federation, guardianship is possible over incapacitated persons who are not aware of the consequences of their actions, namely:

• over minor children under the age of fourteen who are left without parental care;
• over adult (adult) citizens who are deprived of legal capacity by a court decision that has entered into force (deprivation of legal capacity is possible due to a serious mental illness, due to the onset of senile dementia, and also in some cases if the citizen is seriously dependent on alcohol, drugs, etc.) .

Establishing guardianship over an adult person is possible only in the case of a complete lack of legal capacity, since only in this case a person cannot independently fulfill his civil duties in full, and he needs a guardian. As a guardian of an incompetent citizen, the law allows the involvement of close or distant relatives, friends or acquaintances, as well as any citizens who are strangers to the incompetent person or the heads of medical or social specialized institutions.

There are three different forms of care, patronage and care for incapacitated or partially capable citizens - these are guardianship, trusteeship and patronage. There are more similarities than differences between these three concepts. All of them involve caring for unprotected or low-protected citizens, their protection, and patronage. But there is also some difference, which lies in the amount of power of guardians or trustees in relation to their wards.

Guardianship

So, we have already discussed above that guardianship is assigned to:

• minor citizens under the age of fourteen, left without the care of their legal representatives;
• adult citizens who are completely deprived of legal capacity by a court decision that has entered into force.

Both young children and incapacitated adults are people who are not able to understand their actions and the consequences of their actions, and, therefore, they are not able to make legally significant decisions, make legally significant transactions, manage their property, and also be responsible for any of your actions, including for offenses.

The legal representative of any incapacitated citizen is his guardian. He disposes of all income, all property of his ward, and is also responsible for any harm caused by the ward. Incapacitated citizens independently have the right to carry out only small household transactions, for example, on behalf of a guardian, buy small goods, food, and manage small amounts of pocket money.

Guardianship

Unlike guardianship, guardianship can be issued over:

• a minor child between fourteen and eighteen years of age who is left without parental care;
• an adult citizen whose legal capacity is limited by a court decision that has entered into force.

The peculiarity of guardianship is that wards are not completely deprived, but only limited in their legal capacity. In other words, such people may be aware of their actions, but not fully. They have the right to independently manage some of their income, for example, a stipend, their own wages, and also carry out some household transactions.

Citizens with limited legal capacity are themselves responsible for their actions and offenses; they are obliged to independently compensate for the harm they cause to third parties.

In the case of guardianship, in contrast to full guardianship, the legal representative has a limited range of rights and responsibilities. He has the right to dispose only of those incomes that his ward cannot dispose of; the ward can perform all legally significant actions with his property only with the permission of his trustee.

Patronage

There is another category of citizens, intermediate. On the one hand, they have retained the ability to make independent decisions, be fully aware of their actions, and take responsibility for their actions, and on the other hand, due to serious illness, physical disability or old age, they need regular outside care and assistance from third parties. In accordance with Art. 41 of the Civil Code of the Russian Federation, patronage may be assigned to such persons at their request.

A patronage assistant cannot be a legal representative, that is, he does not have the right to act on behalf of the person he is caring for: make any transactions, manage the property of the ward, if he does not have a power of attorney for one or another legally significant action. Patronage involves only accompanying the ward, daily assistance and care.

The concept and procedure for establishing guardianship and trusteeship

Guardianship is an option for raising minors who have been deemed deprived of parental care. The grounds for assigning the status are listed in Order of the Ministry of Education and Science No. 101 of 2015.

A child is recognized as left without parents if mom and dad:

• died;
• rights in relation to a minor are deprived or limited;
• declared incompetent;
• are serving a sentence in prison;
• undergo long-term inpatient treatment;
• shirk their duties;
• pose a danger to the life and health of a minor, as a result of which he is removed from the family.

A prerequisite for assigning status to a child is the presence of grounds in relation to two or only parents.

The child is placed in guardianship if it is impossible to arrange him for adoption. A guardian can accept into the family a child removed from his birth parents, returned from a foster family, or placed in an institution for orphans. A special option for guardianship is placement at the request of the parents. This form of education is available exclusively for children without status.

Grounds for appointing a guardian

A guardian may be appointed in cases where the parents of a minor:

• died;
• recognized by the court as missing;
• deprived or limited in parental rights;
• declared incompetent by a court decision;
• cannot support their child due to a long-term serious illness;
• are absent for a long time (for example, they are on a long business trip, or the court sentenced them to imprisonment and they are in prison);
• abandoned the child;
• create a constant threat to their life and health;
• are themselves minors under the age of sixteen.

For adult citizens, the basis for appointing a guardian can only be deprivation of his legal capacity by court.

Until a legal representative of an incompetent citizen is appointed (it makes no difference - an adult or a minor), responsibility for him lies with the district or city department of guardianship and trusteeship at the location of the incapacitated person.

Requirements for a guardian

The law establishes a number of restrictions for persons wishing to take custody of a young child. The conditions are listed in the Family Code and Government Decree No. 423 of 2009.

The following persons are prohibited from taking minors into custody:

• those in same-sex marriage;
• incompetent;
• those who have not completed training for the substitute family school;
• deprived of parental rights;
• without permanent residence;
• those convicted of serious criminal offences;
• susceptible to drug or alcohol addiction;
• without a permanent source of income;
• in the presence of diseases that interfere with the performance of parental responsibilities.

The legislation of the Russian Federation does not allow marriages between citizens of the same sex. If a same-sex couple is in a union registered in a state that allows such marriages, they cannot have custody of the children.

An exception to mandatory training at a foster family school is provided for relatives (brother, sister, grandmother, grandfather, uncle, aunt) and current foster parents.

There is no minimum income limit for a guardian. The main condition is its regularity.

The law sets limits on the moral qualities of a candidate. A citizen who has been repeatedly prosecuted for prostitution may be refused appointment as a guardian.

The list of diseases that interfere with the fulfillment of parental responsibilities includes stage 3 and 4 cancer, disability groups 1-3, HIV.

Registration of guardianship is possible both for married persons and for single women or men.

The necessary conditions

The main condition for the appointment of guardianship is the voluntary decision of the potential guardian, which is expressed in the form of a written petition to appoint him as a guardian.

Important: relatives of a person in need of guardianship have a priority right to a substitute family. Only if a minor or incompetent person does not have a single relative, or none of them has expressed a desire to become a substitute parent, will the guardianship and trusteeship authorities consider other candidates.

In addition to voluntary consent to become a guardian, several more requirements must be met:

• citizenship of the Russian Federation;
• full legal capacity of the potential guardian;
• at least eighteen years of age (there is no upper age limit);
• the applicant owns an apartment or house, or permanently uses residential premises under a social tenancy agreement;
• the applicant has no criminal record for serious or especially serious crimes, as well as for crimes against life or sexual integrity;
• absence of deprivation of parental rights or cancellation of adoption in the past;
• the absence of cases of removal from the duties of a guardian due to the fault of the applicant;
• the absence of diseases that prevent the applicant from performing guardianship duties;
• some other requirements.

The following cannot become a guardian:

• emancipated citizens under the age of eighteen;
• persons with limited legal capacity by court decision;
• citizens registered in a psychiatric or drug treatment clinic;
• persons previously convicted of crimes against the person;
• citizens deprived or limited in their parental rights in relation to other children;
• persons who do not have a permanent place of residence;
• men or women whose spouses have been declared legally incompetent by a court;
• some other restrictions.

In 2021, a unified database was created in the Russian Federation on all persons previously deprived of parental rights or limited in them, as well as on citizens removed from guardianship due to their fault. All persons convicted of crimes against the person are included in the same database.

Such a database was created to limit the appointment of guardians by persons who do not have the right to do so, since previously it was much easier to mislead PLO employees.

Responsibilities of a Guardian

The main responsibility of a guardian is the upbringing and maintenance of the ward. The citizen chooses the methods of education and upbringing independently.

The citizen is responsible for protecting the legal rights and interests of the child. A person has the right to demand the return of a minor from any citizen who is detaining him without legal grounds, including his blood parents.

The guardian is responsible for the child's property. Every year, before February 1, foster parents submit a report on the safety of the property of their wards. The document includes information on income and expenses made at the expense of children's funds, movable and immovable property, payments and benefits, taxes and fees. The report form is established by Government Decree No. 423 of 2009.

The guardian is obliged to live together with the ward and register him permanently or temporarily at his place of residence. Separation is possible from the age of 16 with permission from the guardianship department.

Duties and responsibilities of a guardian

From the moment a guardianship order is made, the substitute parent receives all the rights and responsibilities of the legal representative of the ward. From now on, the guardian is obliged:

• support the ward and provide him with everything necessary in accordance with the state of health of the ward and his age;
• provide the pupil with medical care - timely and in full;
• protect the property and civil rights of the pupil;
• represent his interests in all judicial and government bodies, as well as in any other authorities;
• provide the minor with the opportunity to study.

Monitoring the fulfillment of the guardianship duties of the substitute parent is carried out by specialists of the Public Educational Institution. To carry out control, they visit the residential premises where the foster family lives:

1. Within the first 30 days from the date of appointment of guardianship.
2. Then during the first year - once every three months.
3. Then - once within six months until the end of guardianship.

Registration of child custody

To obtain guardianship of a child, a person must obtain a conclusion from the guardianship department, allowing the placement of a minor in the family of a citizen. The algorithm for obtaining permission is regulated by Government Decree No. 423 of 2009.

Procedure:

1. Contact the guardianship department.
2. Collection of documents.
3. Submitting an application.
4. Getting permission.
5. Registration of guardianship.

Consultation with the guardianship department

A citizen applies to the guardianship department at the place of permanent or temporary registration to receive preliminary consultation on the issue of family placement of orphans. After a conversation with a specialist, he receives a list of documents and a referral to the school for foster families.

The procedure for selecting institutions providing training is established by regional legislation. The study period ranges from 4 days to 1 month.

Submission of documents is possible directly to the guardianship department, through the MFC, using the federal or regional State Services service, or on the website of the guardianship department.

Statement on the possibility of obtaining an opinion

A form for filling out a written application is issued by the guardianship department and is also posted on the organization’s website. The form of the document is approved by Order of the Ministry of Education of 2021 No. 4.

The document includes:

• name of the authorized body;
• applicant details;
• citizenship;
• address (registration and actual residence);
• phone number;
• information about criminal convictions;
• data on the presence/absence of a pension;
• information about persons living with the applicant;
• request for an opinion;
• additional information;
• list of documents;
• date and signature.

Sample application for issuing an opinion

Specialists of the multifunctional center fill out the form themselves and give it to the citizen for review and signature.

To submit documents through State Services, you must have a confirmed personal account. The application is submitted electronically.

List of documents

The list of information required for registration as a candidate for foster parents is provided by Government Decree No. 423 of 2009.

List of documentation

The law does not provide for the provision of additional information. Requesting other information is prohibited.

Categories of citizens over whom guardianship and trusteeship are established

The following categories of citizens need guardianship or trusteeship:

1. Children . If a minor child under the age of 14 is left without parental care, then he needs a substitute family, that is, adoptive parents or a guardian. If he lost his parents at the age of 14 or older, then a guardian will be appointed instead of a guardian.
2. Citizens suffering from severe mental disorders . The condition for appointing guardianship is that the citizen is officially declared incompetent, that is, this must be confirmed by a medical commission and the court.
3. Persons with disabilities . We are talking about severe disability, when people are unable to care for themselves. In this case, most often we are talking about patronage, since a severe degree of disability does not imply a person’s inability to account for his actions.
4. Citizens who have any kind of painful addiction . We are talking about alcohol, drug, gaming and some other types of addiction. If the degree of addiction to alcohol, drugs or gambling is so great that a person cannot control himself, he may be recognized as having limited legal capacity. In this case, a person with any kind of addiction does not have the right to independently choose a trustee; he is appointed by the PLO.

Deadlines for submission and review

Collecting a package of documents takes 30 days or more. Certificates are valid for 1 year . The exception is a medical report, which is valid for 6 months .

Within 3 days from the date of submission of the application, department specialists go to the citizen’s permanent residence address to conduct an examination of living conditions. The commission evaluates the sanitary condition of the premises, its size, the presence of separate rooms for boys and girls, sleeping places, food, and the number of residents. When conducting an inspection, the citizen presents original documents if the application was submitted through the MFC, the organization’s website or electronic services.

Within 3 days, specialists draw up a report, certify it with the signature of the manager and send a second copy to the applicant. The total period for reviewing documentation is 10 days. A positive decision of the guardianship authority is drawn up in the form of an opinion, a negative one - in the form of an act of a local government body.

What to do in case of refusal

The act of examining the conditions and the refusal to issue an opinion are handed to the citizen within 3 days from the date of issuance . Specialists explain to the recipient the rules for appealing a document in court.

The law provides for a two-week period for going to court to protect rights. The appeal is carried out according to the procedure of claim proceedings. The applicant is exempt from paying state duty on the basis of Art. 333.36 Tax Code of the Russian Federation.

The citizen’s personal documents (passport), copies of documents for obtaining an opinion and the original refusal are attached to the statement of claim. The court reviews the information provided and makes a decision.

A positive decision obliges the guardianship and trusteeship authority to issue an opinion on the possibility of being a candidate.

Termination of guardianship

Guardianship or trusteeship may be terminated on time or early. This is possible in the following cases:

1. According to the law : over a minor - when he reaches the age of 14 years (guardianship turns into trusteeship), or when the minor reaches the age of 18 years (guardianship is terminated, since the person becomes fully capable);
2. over a minor child - after the reason for his receiving the status of a minor left without parental care is canceled (for example, the mother has restored parental rights);
3. over an incapacitated adult - if he restores his legal capacity;
4. over any ward - after his death, or the death of a guardian or trustee.

Depending on the circumstances under which the guardian was removed from the performance of his duties, various measures of liability may be applied to him:

• compensation for material damage;
• criminal prosecution;
• administrative punishment.

So, we found out that Russian legislation clearly establishes and defines:

• categories of citizens over whom guardianship can be established;
• categories of citizens who can become guardians;
• circumstances under which guardianship may be assigned;
• situations in which it is possible to terminate it,
• other important circumstances of the appointment of guardianship or trusteeship.

In order to take custody of a minor child or an incapacitated adult citizen, the candidate for guardianship must independently apply to the guardianship and trusteeship authorities at the place of residence of the future ward with an application for the appointment of guardianship.

If any difficulties arise during the collection of necessary documents or in the process of registering guardianship, you can seek help from the specialists of our website. Our lawyers will advise you and, if necessary, provide any other legal support.

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Author of the article

Natalya Fomicheva

Website expert lawyer. 10 years of experience. Inheritance matters. Family disputes. Housing and land law.

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Payments and benefits

The law provides financial support for persons who have adopted minor children. When placing a child in a family, the social protection department pays the applicant a one-time benefit. It is paid exclusively at the request of the guardian, within 6 months after the issuance of the act appointing guardianship.

The amount of the benefit is regulated by regional legislation. The citizen receives a monthly payment for child support. Funds are paid into the nominee account of the guardian. The law does not provide for reporting on how benefits are spent. The exceptions are paid treatment, purchases exceeding 2 minimum wages, and renovation of the child’s own living space. The money must be spent by the guardian on clothes, shoes, food and household needs of the ward.

When providing paid guardianship under a foster family agreement, the guardian additionally receives remuneration for the implementation of his activities. The size and procedure for making payments is established by the laws of the region. Funds are transferred monthly, within the period established by the agreement, to the personal account of the adoptive parent. The amount of the payment increases when a disabled child is adopted into the family.

Benefits for foster families are established by regulations of the constituent entities. Regions include wards in the family when assigning the status of a large family. A citizen raising 3 or more children receives a discount on utility bills and free medicines for children under 3 years of age.

Every year the ward undergoes medical examination. It includes a full medical examination by general practitioners and specialists, and ultrasound examination.