What is meant by the word "guardian"?
A guardian is an adult citizen of the Russian Federation who wishes to take on the responsibilities of caring for and raising a person in need of guardianship. The role of wards are adults who are deprived of legal capacity by a court decision, and children under 18 years of age and temporarily living in an orphanage or shelter. Mentally ill citizens are also considered incompetent. They are awarded the first disability group. Guardianship is also established for elderly people over 80 years of age and pensioners in need of constant care. The form of guardianship is as follows:
- Paid guardianship is characterized by certain monetary payments from the state as a reward for the performance of one’s duties. How much the guardian will receive depends on the agreement drawn up between the parties and the ward. If the ward is disabled or requires constant care that does not allow him to work, then a small compensation is allocated from the budget. In foster care and foster families, guardians even receive certain amounts every month for accepting a child from an orphanage for upbringing. Maintenance costs are compensated by a monthly allowance and other payments guaranteed by the state to orphans.
- Gratuitous guardianship occurs in most cases. The guardian is only provided with funds for the maintenance of the ward. They will have to be reported annually to the PLO.
It is generally accepted that guardianship should be selfless. Any actions aimed at enriching oneself at the expense of the ward’s property or money are punishable by law. The guardian may be deprived of benefits, bonuses, fined, or even released from guardianship duties.
The property of the person under guardianship is described. If necessary, a trust agreement is drawn up. Guardianship officials monitor the disposal of the ward's property.
What is the difference between guardians and trustees?
The essence of guardianship and trusteeship is to care for the ward and protect his interests. The voiced forms of patronage differ only in some points:
- A guardian is appointed for minors under 14 years of age and incompetent citizens. He is obliged to act on behalf of the ward in all legally significant matters (choose a medical and educational institution, participate in court hearings, pay for services).
- A guardian is required for children from 14 to 18 years of age and partially incapacitated people. The duties of the representative of the guardianship authorities include monitoring the observance of the rights of the ward and protecting his interests. From the age of 16, the person under guardianship has the right to ask to live separately. If a teenager or partially incapacitated citizen wants to sell his property, he must obtain the approval of a trustee. Both parties will be involved during the transaction.
Procedure for establishing guardianship of minors
The procedure for establishing guardianship (sequence of actions, list of documents, deadlines) is established by Government Resolution No. 423[6].
A guardian is appointed by the guardianship and trusteeship bodies, which are also local government bodies, their powers are determined by their Charters. A guardian is appointed by issuing a resolution by the head of the city, district or district administration in the city at the place of residence of the guardian; a similar procedure is applied to trustees. Preparatory work and supervision of the guardian (trustee) is carried out by departments or departments of the national economy, social protection of the population, health care of the relevant territorial administration.
Requirements for a guardian:
- An adult person.
- Capable person.
- With the consent of the person.
Usually, persons related to the future ward are appointed. And if they are absent, then persons chosen by the guardianship and trusteeship authorities are appointed.
Who has the right to become a guardian?
The guardianship and trusteeship authorities have the right to appoint as a guardian a person who meets the criteria established by law:
| Criterion | Description |
| Adult citizen under 60 years of age | The law states that the required age of a candidate for guardianship varies depending on the ward. If it is a child, then they look for a person 16 or more years older than him to care for him. The exception is when one of the relatives (grandmother, grandfather, brother, sister), after the death or removal from raising the baby’s mother and father, decided to submit documents to the OOP. They are first-line candidates, so the requirements are slightly lower. It is enough to be an adult citizen of Russia and meet other criteria. A similar situation occurs when a stepfather submits an application for guardianship rights to the guardianship authorities after the death of his wife, who is the mother of the child, and vice versa. |
| Completely healthy | The mental and physical condition of the candidate must be satisfactory. Only a healthy person can be a guardian. The presence of serious pathologies will be a reason for refusal. The diagnosis is confirmed by a medical examination. |
| Previously, I was not deprived of the right to raise a child | A person who wishes to become a guardian must not have previously been deprived of parental (adoptive) or guardianship rights. |
| Has a good financial position | The candidate must have a stable income and his own living space, where he will live with the ward. |
| No criminal record | Previously convicted citizens cannot become guardians or adopt a child. |
| There are necessary personal qualities | A person who sincerely wants to help those in need must become a guardian. The necessary qualities are identified in a personal conversation with guardianship officials. |
| Has no dependencies | The candidate must not have problems with alcohol or drugs. |
| Completed training | Before submitting documents for granting guardianship rights, you must complete special courses. This requirement does not apply to relatives of the person under guardianship. |
There are no restrictions regarding the guardian having his own children. For example, a single mother, meeting all the requirements, has the right to take custody of 1 more child.
Guardianship of minors
Guardianship is established over children under 14 years of age for the purpose of their maintenance, education and upbringing, as well as to protect their rights and interests. Unlike adoption, the child retains his last name, first name, and patronymic, and the blood parents are not released from the obligation to participate in the maintenance of the child. For the maintenance of the ward, the guardian is paid monthly funds in the amount established by the legislation of the subject of the federation. Guardianship authorities are required to regularly monitor the conditions of detention, upbringing and education of the child.
Guardianship is often used as an intermediate form of placing a child in a family before adoption.
Peculiarities:
- In some cases, the school may be the child's guardian, if one of the parents so requests.
- Guardianship is established by a decision of the guardianship and trusteeship authority, as a result of which it is processed faster than adoption, since a court decision is not required.
- As a rule, only one person can be appointed as a guardian.
- The guardian is paid monthly to support the child and is provided with assistance in organizing education, recreation and treatment for the ward. These funds belong to the child and can only be spent on his maintenance and upbringing. There are annual financial statements.
- When the ward turns 18 years old, he is allocated housing if he does not have one.
- Less stringent requirements for a candidate guardian in terms of income and living conditions.
- The child does not become a full-fledged member of the family (relative), and at an older age (from 10 years old), this situation can provoke the child into serious conflicts with the guardian’s family.
- Guardianship authorities monitor the custodial family for the entire period of the child’s stay in the family more often and in more detail than during adoption.
- There is no secret in placing a child under guardianship, and contacts with the child’s blood relatives are possible, and in some cases mandatory.
- Changing a child's surname is very difficult; changing the date of birth and recording the guardian as a parent on the birth certificate is impossible.
The rule applies: one guardian - one child, with the exception of the transfer of sibling children to the same family.
There are two types of guardianship: simple and paid. Paid guardianship is carried out on the basis of an agreement concluded between the guardianship and trusteeship authority and the guardian. At the moment, in Russia there are two types of paid guardianship as subspecies, transferred from separate forms of placement - foster family and foster care. Other paid types of guardianship may be established by regional legislation of the Russian Federation.
With the entry into force of Federal Law No. 48 “On Guardianship and Trusteeship” [3] on September 1, 2008, several new rules regarding the appointment of guardianship came into force.
- It has become possible to immediately establish guardianship, without the potential guardian preparing all the required documents; this type of guardianship is called “preliminary guardianship.” Preliminary guardianship is urgent and can be assigned for six months, and in exceptional cases can be extended for another two months.
- A single parent has the right (by submitting an appropriate application) to appoint a guardian for his child in the event of his death.
- The possibility of voluntary transfer of a child into the care of a specific person by parents (in this case, the child is not listed as left without parental care and funds for his maintenance are not paid).
- Appointment of a guardian at the request of a child over 14 years of age.
When the ward child reaches the age of 14 years, guardianship is terminated, and the citizen who was the guardian becomes the guardian of the minor, without any additional decision on this.
Rights and obligations
A guardian of a minor child or an incapacitated person has the following rights:
- Take care of the ward: Feed.
- Dress.
- Maintain hygiene and health.
- Create comfortable conditions for living together.
Guardianship rights are secured by Article 36. Civil Code. The actions of the authorized person must be aimed at the benefit of the ward and the protection of his property and interests. Guardians are also given certain responsibilities:
- Take care of providing the ward with state-guaranteed payments (money transfers from deprived parents, benefits, pensions).
- Protect the rights of the person under guardianship in court and other institutions.
- Protect the property of the ward from attacks by 3 persons. If someone has appropriated the property of a person under guardianship, then a representative authorized by the PLO has the right to file a claim.
- Strive to increase the property of the person under guardianship and make money from it. The funds may be used only for the needs of the owner of the property.
- Protect the interests of the ward in disputes with individuals and legal entities. If damage is caused to him, demand compensation.
- Seek medical services in a timely manner.
The representative authorized by the guardianship authorities is also obliged to submit an application for the restoration of legal capacity to the ward if his health condition begins to improve. It will be considered in court.
Illegal actions
The following actions of a guardian are prohibited by law:
| Action | Description |
| Transactions with the ward | An incapacitated citizen and a minor child cannot perform actions of legal significance. Any transactions between the ward and the guardian are considered invalid and prohibited by law. A representative authorized by the guardianship authorities can only donate property or allow it to be used free of charge. |
| Obstruction of communication with relatives | If the court has not prohibited communication with living biological parents and other family members, then the guardian has no right to interfere. The exception is cases of bad influence on the ward. |
| Committing selfish actions | It is strictly prohibited to use the property and funds of the person under guardianship for various purposes not related to meeting the needs of the owner. This category also includes alienation transactions (exchange, rental, sale) on behalf of the ward without the consent of the PLO employees. |
| Inheritance of property of a ward | A guardian cannot be the heir of the person under his guardianship. The exception is cases when an incapacitated citizen writes an inheritance agreement before losing his legal capacity. |
Property rights
The guardian may use the movable and immovable property of the ward with the permission of the guardianship and trusteeship authorities. The transactions made must benefit the person under guardianship. The following actions are strictly prohibited:
- Personally or on behalf of the ward, draw up an agreement on the use of the property of the ward for a period of 5 or more years.
- Conclude transactions for the alienation or provision of property of the ward for free use.
- Take out a loan secured by the property of a person under guardianship.
How to apply
If a person wishes to take custody of a child, he must provide the following package of documents to the guardianship and trusteeship authorities:
- statement;
- salary certificate from the place of work for a period equal to a year;
- title documentation for housing;
- certificate of no criminal record;
- a certificate from a medical institution about the citizen’s health;
- marriage certificate, if one was registered;
- autobiography of a citizen;
- certificate of compliance of the residential premises with all necessary standards.
Sanctions applied in case of dishonest fulfillment of guardianship duties
The guardian is responsible for his own actions and the actions of the person under his care. Transactions that result in a decrease in the value of the ward’s property are compensated by a person authorized by the guardianship authorities. A similar situation occurs when damage is caused to 3 persons by a person under guardianship.
PLO employees monitor the conscientious fulfillment of guardianship duties. If selfish actions or careless performance of assigned duties are detected, the guardian may face administrative and criminal liability.
Registration procedure
A candidate who wishes to take on the responsibilities of caring for a child or an incapacitated person must submit the appropriate package of documents and an application to the guardianship authorities. The relationship between the chosen guardian and the ward is legitimized by an agreement that specifies the rights and obligations of the parties and the validity period. Interested persons who have grounds for committing such actions have the right to challenge the document drawn up. When contacting the guardianship authorities, the candidate must have the following documents with him:
- Passport;
- A document confirming official employment and a certificate of income.
- Written consent of other family members of the candidate for guardianship.
- Health certificate.
- Autobiography, which indicates basic information (place and date of birth, education, work).
- A document confirming that the applicant has no previous criminal record.
- Characteristics of the candidate from the immediate supervisor.
- A certificate confirming the availability of your own home.
- Statement of desire to become a guardian.
- Pension certificate (if available).
Documents must be duplicated and copies must be provided along with the originals. The verdict will come in writing. The refusal must be justified.
Topic: Rights and responsibilities of parents
Answer:
The legislation establishes that guardianship is established over young children, that is, children under fourteen years of age (clause 2 of article 145 of the Civil Code and clause 1 of article 32 of the Civil Code), and guardianship over minor children aged fourteen to eighteen years ( clause 2 of article 145 of the Civil Code and clause 1 of article 33 of the Civil Code).
The basis for establishing guardianship and trusteeship of children is the fact that they have lost parental care for one reason or another. Guardianship or trusteeship is established over children left without parental care for the purpose of their maintenance, upbringing and education, as well as to protect their rights and interests.
The distinction between the concepts of guardianship and trusteeship is not significant in the field of upbringing and education of children under their care, but is extremely important in the field of protection by guardians (trustees) of their personal and property rights and interests, which is largely determined by differences in the content of the legal capacity of minors under the age of fourteen and from fourteen to eighteen years old. In the civil legal sphere, guardianship and trusteeship are considered as ways to replenish the legal capacity of citizens (partial or incomplete).
The establishment and termination of guardianship or trusteeship of children are determined by the Civil Code of the Russian Federation and in accordance with paragraph 1 of Art. 35 of the Civil Code fall within the competence of the guardianship and trusteeship authority at the place of residence of children in need of guardianship and trusteeship.
The guardianship and trusteeship authority at the child’s place of residence appoints a guardian or trustee for the child within a month from the moment it becomes aware of the need to establish guardianship (trusteeship) over them. If there are circumstances worthy of attention (for example, a child already lives in the family of a candidate for guardian or trustee), a guardian or trustee may be appointed by the guardianship and trusteeship authority also at the place of residence of the guardian (trustee). If a child in need of guardianship or trusteeship is not appointed a guardian or trustee within a month, the performance of the duties of a guardian or trustee is temporarily assigned directly to the guardianship and trusteeship body.
A guardian or trustee can be appointed only with his consent (clause 3 of article 35 of the Civil Code). This is a mandatory condition, which is natural, since coercion to fulfill guardianship or trusteeship duties cannot correspond to the interests of the child and the goals of guardianship (trusteeship) are unlikely to be achieved. Such consent is expressed in a corresponding application to the guardianship and trusteeship authority.
The RF IC and the RF Civil Code establish certain requirements for persons appointed as guardians or trustees. Only adults with legal capacity can be appointed as guardians (trustees) (Clause 1, Article 146 of the RF IC; Clause 2, Article 35 of the Civil Code of the Russian Federation).
The law prohibits being a guardian (trustee) due to the inability to properly ensure the family education of a child:
- minors, regardless of their acquisition of full legal capacity before reaching the age of majority;
- incapacitated persons;
- persons deprived of parental rights;
- persons suffering from chronic alcoholism or drug addiction;
- persons previously removed from the duties of guardians or trustees;
- persons whose children were taken away without deprivation of parental rights, that is, those with limited parental rights;
- to former adoptive parents, if the adoption was canceled due to their fault;
- persons who, due to health reasons, are unable to raise a child.
Application example
To avoid mistakes, lawyers advise you to familiarize yourself with generally accepted sample statements. If you wish to become a child's guardian, the following form will be useful:
If we are talking about guardianship of an incapacitated citizen, then you will need to write a slightly different statement:
Consequently, a guardian is a citizen who wishes to take on the responsibilities of caring for an incapacitated person or child. He is appointed by the guardianship and trusteeship authorities. The candidate must be a healthy, capable adult citizen of the Russian Federation who has his own housing that meets all the criteria and an official income. An application is submitted about the desire to fulfill the guardianship duty to the employees of the PLO at the place of residence.
Legislation
The law regulates the adoption procedure, establishes the rights and obligations of guardians and their wards through the following legislative acts:
- The main document related to this issue is the Law “On Guardianship and Trusteeship” No. 48-FZ. Here are the basic concepts and provisions regarding guardianship issues; powers of guardianship and trusteeship authorities; the procedure for appointing guardians, requirements for them; rights and responsibilities of guardians and their wards; responsibility of the parties for failure to comply with the law and the procedure for terminating guardianship over a minor child.
- Chapter 20 of the Family Code of the Russian Federation contains information on the issues of establishing guardianship of children, requirements for potential guardians, their rights and obligations, as well as the rights of children under guardianship.
- Certain issues regarding guardianship and trusteeship of minor children are discussed in Government Decree No. 423.
