3.1. Grounds and procedure for establishing guardianship and trusteeship of children

The legal institution of guardianship and trusteeship is a specific part of Russian law. This branch of law regulates a wide range of issues. These include raising a guardian, ensuring living conditions, alimony, pensions, other social benefits and many other issues. From the moment guardianship is appointed, the child’s parents lose their rights and obligations towards him, but they can appeal absolutely all actions or inactions of the guardian. Often the relationship between the guardian and the guardianship and trusteeship authorities does not work out in the best way.

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Grounds for termination of guardianship and trusteeship

Guardianship and trusteeship, as a form of raising a minor, can be terminated both automatically and upon the occurrence of certain events or the commission of actions.

Automatic termination means the onset of adulthood, emancipation, and marriage. When these events occur, the ward acquires full legal capacity, and the renewal of guardianship becomes impossible. Automatic termination can also occur with an adult if, for example, guardianship was established over him due to illness, and he recovered.

The legislation identifies the following as other grounds for termination of guardianship:

the onset of death;
expiration of the period of appointment of guardianship over the ward;
release of a person from the duties of a guardian or trustee. This may occur as a result, for example, of the ward returning to his parents, placing him under the supervision of an educational organization, and in other cases in which it becomes impossible to continue fulfilling his assigned duties;
removal of a guardian or trustee. The body may remove a guardian or trustee in case of violation of the rights of the ward, failure to preserve his property and if other serious violations of his rights are identified.

The termination of guardianship and trusteeship completes the system of interaction between authorities in these legal relations.

Guardian's responsibility

Representatives of incapacitated persons in case of violation of the rights of their wards will bear responsibility established by law. In addition to administrative or property liability, it also provides for criminal liability. In the latter case, we are talking about leaving the person under care without proper control and care. If actions are considered unlawful or expressed in the form of inaction, then in any case they will entail certain penalties. A professional free lawyer will provide online legal advice on family issues around the clock, just leave a request.

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Complaint against a guardian to initiate termination of guardianship and trusteeship

Any caring person who has learned of a guardian’s violation of the rights of a child or an adult declared incompetent, or the ward himself, has the right to file a complaint with the appropriate department. According to Art. 7 Federal Law dated April 24, 2008 No. 48-FZ No. “On guardianship and trusteeship” the main tasks of the guardianship and trusteeship authorities include protecting the rights of wards and monitoring the activities of guardians.

The complaint is submitted in free form to the guardianship authority at the place of residence of the ward and consists of four main parts:

Introductory . The name of the territorial body and information about the originator of the complaint are indicated.
Main . The situation that served as the reason for writing the complaint is described. The applicant indicates which guardian violates the rights of the ward.
Petitionary . The applicant indicates why the complaint was sent to them and what actions need to be taken.
Applications . Documents confirming the validity of the circumstances stated in it are attached to the complaint.

After receiving such a complaint, the guardianship and trusteeship authorities check the living conditions of the ward, identify violations of his rights and interests and, based on the results of the inspection, send a response to the applicant about the identification or absence of violations on the part of the guardian.

If violations are detected, the guardianship and trusteeship authorities remove the guardian from duties, and the inspection materials are transferred to the court and the prosecutor's office.

USEFUL : watch a video with advice from a lawyer on how to file a complaint to guardianship, and also write your question in the comments of the video

Where to go to apply for guardianship

In order to obtain guardianship over an incapacitated person, you must submit a written application to the local guardianship authorities. If consent is not obtained from this body, you have every right to go to court. When a person is recognized as partially incompetent, he independently has the right to express his consent to the establishment of guardianship for himself.

The application form for guardianship of an incapacitated person can be downloaded here.

In this case, a consent statement is written on his behalf, which does not require going to court. The guardianship authorities will still monitor the guardianship process, visit the place of residence, place of work to check the quality of fulfillment of all conditions.

The representative does not have the right to work if the ward has reached the age of 80, that is, over an elderly incapacitated person. Officially, he cannot get a job anywhere, even for a few hours during the day, if guardianship of the elderly has been issued. This is due to the fact that such citizens should be provided with round-the-clock inspection and assistance. The elderly should not be left without attention.

The procedure for the release and removal of guardians and trustees from duties

The release of guardians and trustees from their duties occurs voluntarily; removal, on the contrary, indicates the lack of will of the guardians and trustees to terminate their duties. In both cases, the rights and obligations of guardians and trustees will be terminated from the moment the guardianship and trusteeship authority issues an act releasing these persons from their assigned duties.

The act of releasing a guardian or trustee from assigned duties may be appealed by him in court. Within three days from the moment he became aware of the termination of his duties, it is necessary to provide the authority with a detailed report on the storage and use of the ward’s property. For harm caused to the person and property of the ward, the guardian or trustee may be subject to criminal or administrative liability, as well as the obligation to fully compensate for the material damage caused.

3.1. Grounds and procedure for establishing guardianship and trusteeship of children

The institution of guardianship and trusteeship of children left without parental care existed for a long time in various forms both in pre-revolutionary Russia and then in the RSFSR. Currently, in family law, guardianship and trusteeship are understood as a form of placement of orphans and children left without parental care, for the purpose of their maintenance, upbringing and education, as well as to protect their rights and interests (Articles 123, 145 of the Family Code, p. 1, Article 35 of the Civil Code, Article 1 of the Law on Additional Guarantees for Social Protection of Orphans and Children Without Parental Care). Minor children left without parental care include children whose parents have died, been deprived of parental rights, have limited parental rights, or have been declared incompetent. Lack of parental care can also be caused by illness of the parents, which prevents them from fulfilling parental responsibilities, long-term absence of parents (due to a business trip, serving a sentence in prison, etc.), evasion of parents from raising children or from protecting their rights and interests ( including when parents refuse to take their children from educational institutions) and other reasons (Article 121 of the Civil Code, paragraph 3 of Article 31 of the Civil Code). The institution of guardianship and trusteeship is based on the norms of not only family law, but also civil law, as well as administrative law, i.e., it is complex in nature. In the Civil Code, the rules on guardianship and trusteeship are part of various institutions: the legal capacity of citizens, representation, transactions, obligations arising from causing harm. In addition, the Civil Code contains general provisions on the establishment and termination of guardianship and trusteeship over citizens. In the UK, the rules on guardianship and trusteeship form an independent section and regulate guardianship and trusteeship as a form of placement and family education of children left without parental care. The IC respectively defines the rights and responsibilities of guardians (trustees) and the rights of minor children under guardianship (trusteeship). The basis for establishing guardianship and trusteeship of children is the fact that they have lost parental care for one reason or another. Guardianship and trusteeship of children pursue two main goals: a) raising children left without parental care; b) protection of the rights and interests of children left without parental care (clause 1 of article 145 of the Civil Code, clause 1 of article 31 of the Civil Code). The legislation establishes that guardianship is established over young children, i.e. children under fourteen years of age (clause 2 of article 145 of the SK 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). Previously, before the entry into force of part one of the Civil Code (i.e. before January 1, 1995), guardianship was established over minors under the age of fifteen years, and guardianship over minors aged fifteen to eighteen years (part 1 of Art. 121 KoBS). 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 it is 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). As is known, minors aged six to fourteen years have the right to independently carry out only a very limited range of transactions: small household transactions, transactions aimed at obtaining benefits free of charge, which do not require notarization or state registration, as well as transactions for the disposal of funds provided by a legal representative or with his consent by a third party for a specific purpose or for free disposal. All other transactions for minors under the age of fourteen are carried out by his guardian as a legal representative (Clause 2 of Article 28 of the Civil Code). Thanks to the guardian, a child left without parental care can become a participant in any civil legal relationship. Minors aged fourteen to eighteen years have a much greater capacity in the civil legal sphere than minors. They have the right to independently carry out the same transactions as minors aged six to fourteen years, and in addition, they can, without the consent of the trustees, dispose of their earnings, scholarships and other income, exercise the rights of the author of works of science, literature or art, inventions or other the result of their intellectual activity protected by law, as well as, in accordance with the law, make deposits in credit institutions and manage them. To carry out other transactions, a ward aged fourteen to eighteen years requires the written consent of the legal representative - the trustee (clauses 1, 2 of Article 26 of the Civil Code). Thus, the trustee is called upon to assist the minor ward in the implementation of his rights in the civil law sphere. In contrast to the previously effective legislation (Article 119 of the Code of Laws), the procedure for establishing and terminating guardianship and trusteeship of minor children of the middle class is no longer regulated, as it is not directly related to family relations. The establishment and termination of guardianship or trusteeship of children are determined by the Civil Code and in accordance with its paragraph 1 of Art. 35 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 bodies are local government bodies - elected and other bodies empowered to resolve issues of local importance and not included in the system of state authorities (clause 1 of Article 34 of the Civil Code). Local government bodies of all levels, including township (rural), district and city administrations, appoint guardians and trustees by making an appropriate decision. For example, in Moscow, the organization and implementation of guardianship and trusteeship, including in relation to children, is the subject of jurisdiction of municipalities. In this case, the necessary interaction with the municipality is carried out by the Moscow district government and the prefecture of the Moscow administrative district, as territorial bodies of the city executive power, subordinate to the Moscow Government. 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 or trusteeship over him. 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. The appointment of a guardian or trustee may be appealed by interested parties in court. 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 forcing citizens to perform guardianship or trusteeship duties cannot correspond to the interests of the child and the goals of guardianship (trusteeship) are unlikely to be achieved. It is necessary to voluntarily express the will of a person who meets the necessary requirements of the law in his personal qualities to assume the responsibilities of a guardian (trustee). In practice, such consent is expressed in a corresponding application to the guardianship and trusteeship authority. The Insurance Code and the Civil Code establish certain requirements for persons appointed as guardians or trustees. Only adult capable citizens can be appointed as guardians (trustees) (clause 1 of article 146 of the Civil Code, clause 2 of article 35 of the Civil Code). The law prohibits the following from being guardians (trustees) due to the inability to properly ensure the family upbringing of a child: a) minors, regardless of their acquisition of full legal capacity before reaching the age of majority; b) incapacitated persons; c) persons deprived of parental rights; d) persons suffering from chronic alcoholism or drug addiction; e) persons previously removed from the duties of guardians or trustees; f) persons whose children were taken away without deprivation of parental rights, i.e. those with limited parental rights; g) former adoptive parents, if the adoption was canceled due to their fault; h) persons who, for health reasons, are unable to raise a child (clause 3 of Article 146 of the Family Code). The guardianship and trusteeship authority does not have the right to appoint as a guardian (trustee) a person who, for health reasons, cannot fulfill the responsibilities of raising a child. The requirements for the health status of guardians (trustees) do not differ from the corresponding requirements for persons wishing to become adoptive parents. The procedure for medical examination of citizens wishing to become guardians (trustees) is determined by the Ministry of Health of the Russian Federation. When the guardianship and trusteeship authority decides on the appointment of a person as a guardian or trustee of a child, the following circumstances must also be taken into account: a) the person’s ability to perform the duties of a guardian (trustee); b) his personal and moral qualities; c) the relationship between him and the child in need of guardianship or trusteeship; d) attitude towards the child of the family members of the guardian (trustee); e) if possible, the desire of the child himself (clause 3 of article 35 of the Civil Code, clause 2 of article 146 of the Civil Code). The criteria by which a person’s ability to perform the duties of a guardian (trustee) should be assessed are not defined by law, which implies the need for an individual approach to resolving this issue in each specific case, taking into account circumstances of a different nature (age of the guardian, trustee, education, occupation, etc.) . P.). Of course, the functions of a guardian (trustee) are easier to perform for a person who has certain skills in raising his own children or who has the necessary qualities for this due to his life experience, education or special training. Much also depends on the relationship between candidates for guardians (trustees) and the child, since kindness, sensitivity and mutual understanding help compensate for the lack of special education of the guardian (trustee). A novelty of the insurance policy is the introduction of the need to take into account the attitude of family members of the future guardian (trustee) towards the child and their desire to participate in his upbringing (guardian’s spouse, trustee, parents, children). This requirement is justified and is caused by the desire to create the most favorable environment for the child under guardianship on the part of the family members of the guardian (trustee), without which it is difficult to solve the problems of raising and developing the child in new conditions. If possible, the guardianship and trusteeship authority should take into account the wishes of the child himself, especially when the child, due to his age and level of development, is able to consciously express it, although this requirement is not mandatory. Unlike adoption, when placing a child under guardianship (trusteeship), his desire or unwillingness to have a specific person as his guardian (trustee) has no legal significance, even if the child is ten years old. However, in a situation where a child has a negative attitude towards a candidate for guardian (trustee), it is important to find out the reasons for such an attitude and make a decision, if possible, taking into account the child’s opinion. Compliance with the requirements for the identity of the guardian (trustee) provided for by the Civil Code and the Investigative Code is aimed not only at ensuring the fulfillment of his duties, but also at preventing possible facts of violence, insult and other unlawful actions against children under guardianship (trusteeship) on the part of the guardian ( trustee) or members of his family. In practice, close relatives of the child (grandfather, grandmother, aunt, uncle, brother, sister, etc.) are most often appointed as guardians (trustees), then it is possible to most optimally take into account the requirements for the personality of the guardian (trustee) and the wishes of the child himself. However, even in this case, the law does not make any exceptions that allow a decision to be made to appoint a relative of the child as his guardian (trustee) in the presence of obstacles provided for by law. The guardianship and trusteeship authority can appoint a guardian (trustee) for the child at the request of the parents themselves, if for some reason (long business trip, illness, etc.) they cannot personally raise the child. In this case, parents can propose to the guardianship and trusteeship body the candidacy of a guardian (trustee). The rights and obligations of a guardian (trustee) arise from the moment the guardianship and trusteeship body makes a decision on his appointment. The guardian (trustee) is issued a guardianship certificate, his rights and responsibilities are explained to him, and the necessary documents of the ward are transferred to him. In the future, the guardianship and trusteeship body is obliged to constantly monitor the activities of guardians (trustees) and provide them with the necessary assistance in raising their wards and resolving other issues. The grounds for termination of guardianship and trusteeship are provided for in Art. 39 and 40 Civil Code. Guardianship over a minor ward is automatically terminated when he reaches the age of fourteen. In this case, the citizen who performed the duties of a guardian becomes the minor’s trustee without an additional decision on this (clause 2 of Article 40 of the Civil Code). Without a special decision, guardianship over minors is terminated when they reach the age of eighteen (clause 3 of article 40 of the Civil Code). Other grounds for terminating guardianship of minors may be the marriage of a minor (clause 2 of Article 21 of the Civil Code) or his emancipation (Article 27 of the Civil Code), i.e. declaring a minor who has reached the age of sixteen years fully capable if he works under an employment contract, including a contract, or with the consent of the trustee, is engaged in entrepreneurial activities. A minor is declared fully capable by decision of the guardianship and trusteeship authority - with the consent of the trustee, or in the absence of such consent - by a court decision. Guardianship and trusteeship may be terminated as a result of the release of guardians or trustees from the performance of their duties. Thus, the release of guardians or trustees from the performance of their duties is carried out by the guardianship and trusteeship authority when returning a minor ward to his parents or transferring him for adoption. In the case of placement of wards in the appropriate educational, medical institutions, social welfare institutions or other similar institution (organization), the guardianship and trusteeship authorities may make such a decision, provided that this does not contradict the interests of the ward (Clause 1, Article 39 of the Civil Code). If there are good reasons (illness, change in property status, lack of mutual understanding with the ward, etc.), the guardian or trustee may be relieved of his duties at his request (clause 2 of Article 39 of the Civil Code). In the event of improper performance by the guardian or trustee of the duties assigned to him, including when he uses guardianship or trusteeship for personal gain or when leaving the ward without supervision and necessary assistance, the guardianship and trusteeship authority may remove the guardian or trustee from the performance of these duties and take the necessary measures. measures to bring the guilty citizen to responsibility established by law (clause 3 of article 39 of the Civil Code). So, according to Art. 156 of the Criminal Code, failure to fulfill or improper fulfillment of duties for the upbringing of a minor by a guardian (trustee), associated with cruel treatment of a child, is punishable by a fine in the amount of fifty to one hundred times the minimum wage or in the amount of the wages or other income of the convicted person for a period of up to one month, or restriction of liberty for a term of up to three years, or imprisonment for a term of up to two years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years. Removal of a guardian (trustee) from his duties is a sanction for guilty behavior and, as a measure of responsibility, entails adverse consequences for him. Such persons cannot in the future be adoptive parents, guardians (trustees), or foster parents (Articles 127, 146, 153SK).

Objections of guardians and trustees with removal

Removal of a guardian or trustee from the performance of duties is a compulsory measure. When the guardianship and trusteeship body makes a decision on removal, the opinions of the ward are taken into account, and the wishes of the guardian or trustee should not influence the decision made. The objections of the guardian or trustee will have an effective effect only if the very fact of improper performance of their assigned duties is refuted.

INTERESTING : guardians have the right not only to defend their correctness and the unfoundedness of the charges, but also to appeal the actions of the guardianship and trusteeship authority, recognizing the illegality of the behavior of the employees of this institution.

Payment of guardianship benefits

If a representative is assigned a benefit, it is paid every calendar month. Over time, it constantly changes in amount and will depend on several factors. But it is worth noting that all these funds must be spent in the interests of the ward. There is really no way to be sure where exactly the money received went.

From time to time it is worth contacting the authorized bodies so that the benefits are recalculated, since indexation occurs associated with its increase. Depending on the level of inflation in the country, on average, a five percent increase in benefits goes towards guardianship of the elderly.

There is no mandatory assignment of benefits, but this is generally what happens. But the funds go to the name of the ward, and not to the guardian. The latter is not legally provided for any payments. State financial assistance is provided only in the case when the representative does not officially work anywhere, which often happens, and is of working age, over an incapacitated disabled person (group 1). Children with disabilities receive benefits that are 4-5 times higher than usual. In some regions there are increasing coefficients, which increase the amount of payments from the state.

Appeal against termination of guardianship

The former guardian or trustee has the right to appeal the decision of the guardianship authorities in court. The statement of claim is filed with the court at the location of the territorial body of guardianship and trusteeship. The application must indicate in detail the current situation, with justification for the illegality of the actions of government agencies. The appendices to the statement of claim contain documents and information confirming the decision made to terminate guardianship, which is contrary to current legislation. All documents must be attached to the application according to the number of parties participating in the process.

After the parties have presented their positions, studied the case materials, debates and remarks, the court makes a decision. In its decision, the court can either refuse to satisfy the plaintiff’s demands or completely cancel the decision of the guardianship and trusteeship body, restoring the plaintiff in all rights over the ward and eliminating all other obstacles in the performance of the duties of the guardian.

Procedure for registering guardianship

It is very important to know how to obtain guardianship for an incapacitated elderly person. There is a guardianship council, where all documents that are necessary to establish guardianship over a person who is incapacitated are submitted. In addition, this includes a mandatory application for guardianship of the elderly, without which no consideration will take place. But the necessary documents and their complete list are given in the Government Resolution, which states:

Personal passports of both parties.
Information about where the legally incompetent person is registered.
If the guardian has a pensioner's book.
Certificate from a medical institution, as well as from the sanitary and epidemiological station.
A court decision declaring a person incompetent.
Technical passport for a residential property.
Certificate of family members registered at this address.
Documents for ownership of the apartment.
Information about the representative's salary.
Obtaining consent to move the person under guardianship (from those living together).
Autobiography.
Account numbers.
Information about the health status of the applicant.

By decision of the Board of Guardians, you may be required to provide some other documents that will be necessary to make a legal decision to establish guardianship over an incapacitated person. The accepted application is reviewed within seven days. During this entire time, representatives of the guardianship authorities will inspect the place of residence of the person under guardianship, after which they will write an act indicating the conclusions. As a result, guardianship of the incapacitated elderly person is already being formalized.