Does the guardian have the right to dispose of property?
The main function of a guardian is to protect the rights and property interests of the ward. One of them is property rights and obligations.
The rules for disposing of property vary depending on the type of property.
Types of income can be divided:
- Alimony, pension, benefits.
- Real estate.
- Movable property.
- Deposits.
ward child
In accordance with Art. 31 of the Civil Code of the Russian Federation, guardianship is assigned over a child aged 0 to 13 years. In accordance with Art. 28 of the Civil Code of the Russian Federation, children of this age are deprived of legal capacity.
They cannot make transactions on their own, with the exception of small household ones. Therefore, the guardian is given the right to full control over their property.
Expert opinion
Stanislav Evseev
Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.
However, the inability to dispose of property does not mean that the child does not have any income. A child, regardless of age, can be the owner of movable and immovable property.
The ward can receive property as an inheritance, as a gift, or be a party to a purchase and sale transaction. Although his interests are represented by a guardian, it is the minor who acquires the right of ownership.
In addition, the child may be the owner of the cash deposit. The law allows the opening of bank accounts in children's names. Moreover, the funds for them are the personal property of the child. Neither parents nor guardians are entitled to them.
incompetent
In accordance with Art. 31 of the Civil Code of the Russian Federation, guardianship is appointed over an adult who is declared incompetent by a court decision. The minimum age of such a ward is 18 years, the maximum is not established by law.
Just like minors, incompetent persons cannot independently manage their property. Therefore, the protection of their property rights is entrusted to the guardian.
At the same time, the incapacitated person is not limited in the possibilities of obtaining property. He can be a full-fledged heir and accept property as a gift.
If a citizen was deprived of legal capacity in old age, then during his life he could receive many pieces of property, make personal contributions, and buy shares.
Transfer of property of a ward by inheritance
Incapacitated persons do not have the right to make a will. But since only the testator can make a will, guardians cannot do this for them. Therefore, the inheritance in this case passes:
- In law.
- According to a will drawn up before loss of legal capacity.
It must be taken into account that the guardian cannot lay claim to the ward’s inheritance even if he was single. He can receive an inheritance only:
- According to the law, if he is a relative of the ward.
- According to the will, if the ward indicated a guardian among the heirs even before the loss of legal capacity and the appointment of guardianship.
A ward can receive the guardian's inheritance:
- Because he is his dependent.
- He was indicated in his will.
- Has the right to receive a mandatory share.
If the guardian did not indicate the ward in the will, then the PLO employees will go to court to obtain his obligatory share.
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What property of the ward can the guardian dispose of?
The rules of disposal directly depend on the type of property. In some cases, a representative can make independent decisions. In others, you must obtain permission from the guardianship department.
To clarify what property a guardian can dispose of, let’s look at the types of property.
Alimony, pension, benefit
From 2021 Art. 37 of the Civil Code of the Russian Federation provides for the need for a guardian to open a nominal account. This is a special bank account, which is concluded between 3 parties (credit institution, guardian and ward).
From the moment guardianship is registered, the citizen must transfer alimony, pensions and benefits of the ward to this account. The guardian receives the right to independently (without the permission of the guardianship department) withdraw funds from the account and spend them in the interests of a minor or incompetent person.
The guardianship department exercises only general control over the expenditure of funds. Every year, the guardian is required to provide the guardianship department with a report on expenses incurred.
Moreover, the guardian does not include expenses for food, clothing, and shoes in the report. It is necessary to indicate only expensive purchases (more than 2 times the cost of living in the region), costs of medical care and repairs of the ward’s home.
If misuse of funds is detected, the guardianship department submits information to the prosecutor's office. The guardian is removed from his duties, and a criminal case for fraud is initiated against him.
Real estate
Real estate or a share in an apartment that belongs to the ward remains his property. To sell it, you must obtain prior permission from the guardianship department.
However, guardianship departments often refuse to complete the transaction. With regard to the property of minors, this is due to the need for the state to provide housing under a social lease agreement to all orphans who do not have an apartment. Therefore, experts prohibit guardians from leaving children without real estate.
Permission is given only as a last resort. For example, if a guardian wants to buy similar housing in another city, and the child is going to study there.
The home of an incapacitated person cannot be sold either. Permission can only be obtained if the ward is provided with a similar apartment. The guardian must justify the need for the sale.
Every year, the guardian reports for the safety of the ward’s real estate, as well as for paying property taxes for housing.
Example . Victoria was her grandfather's guardian. The man was declared incompetent 2 years ago. In addition to senile dementia, the patient had renal failure. Therefore, I underwent dialysis 2 times a week. In order to avoid making the long journey to the hospital, Victoria decided to sell her grandfather’s apartment and move him closer to the clinic. The guardianship department agreed to the transaction.
Movable property
Movable property includes vehicles, furniture, jewelry, and household appliances. Theoretically, the ward can be the owner of such things.
The law provides for the need to compile and store an inventory of property in the personal file of the ward. The document contains a list of all the property of the ward.
If it becomes unusable, the guardian must report this to the guardianship department. Upon presentation of the relevant documents, the item is excluded from the inventory.
The law does not prohibit a guardian from selling the ward's movable property, which does not require state registration. However, it will be necessary to explain the reason for the sale to the guardianship department, and the funds will be deposited into the ward’s account.
Deposits
A child or a disabled person may have personal deposits in credit institutions. The guardian has no right to withdraw funds from them.
Moreover, the bank will refuse to carry out the operation without special permission from the guardianship department.
Such consent is one-time only. A citizen submits an application for the need to purchase a certain product that cannot be purchased at the expense of the ward’s pension. For example, a mobile phone or a computer.
After the funds are issued, the bank specialist takes the consent. The guardian is obliged to account for the purchase made.
Waste of earmarked funds will result in the representative being required to reimburse the amount spent. And the guardian himself may be prosecuted for fraud.
Example . In 2021, a criminal case of fraud was considered in the Chelyabinsk region. The adoptive father of 8 minor children withdrew money from the children's accounts. In total, the amount was 1,176,000 rubles. The man was sentenced to 3 years suspended imprisonment.
On the peculiarities of disposing of real estate belonging to incompetent citizens
Adult incompetent citizens are a specific category of citizens; as a rule, all are disabled people suffering from mental disorders. Due to their state of health, they cannot independently exercise and protect their rights and interests. It is easy to deceive such citizens and deprive them of their most valuable property - housing. Incapacitated citizens may own and own residential buildings, apartments, part of a residential building or apartment, as well as a room related to real estate.
In order to protect the rights and legitimate interests of citizens recognized by the court as incompetent, the guardianship and trusteeship authority establishes guardianship and appoints a guardian, since this type of guardianship is characterized by the largest number of abuses in relation to the property of wards.
For the first time, Federal Law No. 48-FZ of April 24, 2008 “On Guardianship and Trusteeship,” which came into force on September 1, 2008, regulated in detail the important issues of protection, management and disposal of the property of wards, including the peculiarities of the disposal of real estate, determined the procedure and terms issuance of permissions by guardianship and trusteeship authorities to carry out transactions with the property of wards, determined the procedure and deadlines for submitting a guardian’s report on the storage, use and management of the ward’s property, and also for the first time provided for the introduction of liability of guardians and guardianship and trusteeship authorities for violation of the rights and legitimate interests of wards.
The specifics of the disposal of real estate owned by a ward are established by Article 20 of the said law, according to which real estate owned by a ward is not subject to alienation, with the exception of:
1) forced foreclosure on the grounds and in the manner established by federal law, including when foreclosure on the subject of pledge;
2) alienation under an annuity agreement, if such an agreement is made for the benefit of the ward;
3) alienation under a barter agreement, if such an agreement is made for the benefit of the ward;
4) alienation of a residential building, apartment, part of a residential building or apartment belonging to the ward, when changing the place of residence of the ward;
5) alienation of real estate in exceptional cases (the need to pay for expensive treatment, etc.), if the interests of the ward require it.
This list is exhaustive and is not subject to broad interpretation.
To conclude transactions aimed at alienating real estate belonging to a ward, prior permission from the guardianship and trusteeship authority is required. The guardianship and trusteeship authority issues its consent in advance, that is, before the transaction is completed.
The guardian, when applying to the guardianship and trusteeship authority, indicates in the application the justification for the need to carry out a transaction due to the interests or benefits of the ward and submits the necessary documents confirming the need to carry out a certain type of transaction.
In turn, the guardianship and trusteeship body checks the legality and validity of the transaction, excluding the possibility of violation of the property rights of the ward, while being guided by the only fundamental principle - the transaction is carried out in the interests of the ward.
If the transaction is not for the benefit of the ward, the guardianship authority refuses to issue such permission.
Refusal to issue preliminary permission to carry out a transaction is possible only in the event of a violation of the property rights of the ward, entailing deprivation of his right to this property or a decrease in the value of this property.
Preliminary permission issued by the guardianship and trusteeship authority or refusal to issue such permission is provided to the guardian in writing no later than fifteen days from the date of filing the application. Preliminary permission or refusal to issue such permission may be challenged in court by the guardian, other interested parties, as well as the prosecutor.
According to the law, the protection of the ward's property is entrusted to the guardian. At the same time, supervision over the activities of the guardian and control over the safety of property is carried out by the guardianship and trusteeship body.
It should be noted that, in accordance with the current legislation, the guardianship and trusteeship authorities not only give permission to guardians, but also mandatory instructions in writing regarding the disposal of the property of the wards. For example, the guardianship and trusteeship authority has the right to instruct the guardian to confirm, within a specified period of time from the date of alienation of real estate, the emergence of the ward’s ownership of other real estate by providing a certificate of ownership registered in the manner prescribed by law.
In accordance with the above rule of law, if it is discovered that an agreement has been concluded on behalf of the ward without the prior permission of the guardianship and trusteeship authority, or concluded not for the benefit of the ward, the guardianship and trusteeship authority is obliged to immediately apply on behalf of the ward to the court to terminate such an agreement.
If the contract is terminated in court, the property that belonged to the ward is subject to return, and losses caused to the parties to the contract are subject to compensation by the guardian in the amount and in the manner established by civil law.
Thus, the property rights of incapacitated citizens have serious legislative provisions and make it possible to maximally exclude cases of unlawful disposal of the ward’s real estate.
Reception of citizens regarding the protection of the rights and legitimate interests of incapacitated citizens is held at the address: Khabarovsk, st. Frunze, 67, rooms 412, 416, 417, from 09.00 to 18.00, break from 13.00 to 14.00, telephones, 31-53-71, 30-43-07.
Department of Guardianship and Trusteeship of Adult Citizens and Institutions of the Ministry of Social Protection of the Population of the Khabarovsk Territory
Transactions with the property of the ward
The guardian has the right to use the property of the ward. But he is not given the opportunity to freely dispose of it. If the transaction is urgently necessary, then it is necessary to obtain the consent of the guardianship department.
To do this, you must contact the guardianship department at the location of the personal file of the guardian’s family. The representative fills out an application and provides a package of documents.
The application must explain the reasons for the transaction. The funds received are transferred to the ward's account.
The procedure for disposing of the property of a ward
The actions of the representative related to the disposal of the ward’s property differ depending on whether it is necessary to obtain a positive opinion from the authorized body.
Disposition without the consent of the guardianship and trusteeship authority
According to the law, such property includes funds consisting of alimony and (or) state benefits paid in favor of the ward. According to the rules, the guardian or trustee must open a separate nominal account (Chapter 45 of the Civil Code), to which the specified funds will be transferred.
The designated person must spend it on the maintenance of the ward who is the beneficiary. However, these expenses are also under control. An annual report is submitted to the authorized body, accompanied by documents on the expenditure of funds from the specified account. Information on expenses for food, small personal needs and basic necessities purchased for the ward is not required.
Disposal of property in cases where it is necessary to obtain the consent of the authorized body
Art. 21 of the Federal Law “Guardianship and Trusteeship” establishes cases when the consent of the authorized body is required to carry out transactions with the property of a ward. These include:
- concluding lease, rental and free use agreements;
- conclusion of any agreements, the consequences of which are the loss of the ward’s rights to property;
- concluding transactions leading to a decrease in the value of the ward’s property;
- transfer of property as collateral;
- waiver of claims brought in the interests of the ward;
- concluding a settlement agreement both within the framework of judicial proceedings and within the framework of enforcement proceedings, when the ward is a claimant;
- execution of a power of attorney on behalf of the ward.
To obtain approval, the guardian or trustee submits an application to the authorized body.
Consideration of the issue of approval of the transaction by the guardianship and trusteeship authority
The period for consideration of the application of a guardian or trustee is 15 days. The result of consideration of the application can be either a written permission or a refusal, which must be motivated.
If the applicant does not agree with the arguments set out in the refusal, he has the right to appeal it to the district court at the location of the authority. There may be situations in which consent is also appealed. Interested persons, as well as the prosecutor, have the right to initiate the procedure.
If after 15 days the applicant is not given a refusal or consent, then he has the right to appeal the inaction of the guardianship and trusteeship authority in court.
Consequences of concluding a transaction without obtaining the consent of the authorized body
Art. 21 of the Federal Law “On Guardianship and Trusteeship” establishes the obligation of the body to immediately, after establishing the fact of concluding a transaction without its consent, file a claim to have it declared invalid. If the requirements are satisfied, the property is returned to the ward, and the guardian or trustee will be obliged to compensate for the harm caused by his actions.
The exception is cases when the concluded agreement is related to obtaining benefits for the owner of the property. In this case, we can talk about increasing its cost.
Trust management of the ward's property
In accordance with Art. 38 of the Civil Code of the Russian Federation, a guardian can exercise trust management of the ward’s property. For this purpose, a trust management agreement is concluded with the guardianship department.
The agreement is a kind of consent of the guardianship department to use the property of the ward for the purpose of making a profit. It will be needed, for example, to rent out the ward’s apartment.
Important! If a citizen acts as a guardian of an incompetent person on a remunerated basis, then he has the right to receive a certain percentage of his income (no more than 5%). For example, when renting out a ward's apartment, the representative will be entitled to 5% of the pension and rent.
Funds from the trust management are transferred to the personal account of the ward and can be used for his needs.
Conditions for the disposal of the ward's property by guardians and trustees
In order to achieve a balance between respecting the interests of the wards and the ability of the guardian or trustee to effectively resolve current issues, the law establishes a number of conditions.
According to Art. 18 of the Federal Law “On Guardianship and Trusteeship”, the citizen performing these functions must, within 3 days after appointment, take an inventory of all property belonging to the ward.
It is drawn up jointly with the persons who previously stored it. One copy of the document is kept by the guardianship and trusteeship authority, and the other is kept by the guardian or trustee. This rule does not apply to cases where the legal capacity of a ward is limited by court order.
Another exception is property transferred to trust management (Article 38 of the Civil Code). It is not transferred to the guardian or trustee.
The authorized body may give instructions on the disposal of the ward's property in writing. At the same time, different procedures apply to individual transactions:
- An order without obtaining approval from the authorized body.
- An order in the presence of a mandatory positive conclusion from the guardianship and trusteeship authority.
In addition, Art. 37 of the Civil Code establishes a ban on concluding transactions to which a guardian or trustee, his spouse, as well as persons included in the circle of close relatives of such a citizen are a party. The only exceptions are cases where the ward receives property for free use and as a gift.
A guardian or trustee cannot enter into transactions to transfer the ward’s property for use for a period exceeding 5 years. Exceptions are possible only if the guardianship and trusteeship authority confirms the benefit of such an agreement.
What are the differences between trustees and trustees when disposing of property?
Guardianship and trusteeship involve varying degrees of involvement of appointed citizens in the management of the property of the wards.
In the case of trusteeship, persons under it can carry out a number of transactions without the participation of representatives appointed by the authorized body (Articles 26, 30 of the Civil Code).
With guardianship, this possibility is much more limited (Article 28 of the Civil Code). However, the law establishes the obligation to take into account the opinion of the ward when making transactions. If the disease does not allow it to be identified, then one should be guided by information from his relatives and friends.
The form of participation of such citizens in the disposal of the ward’s property also differs significantly. The guardian enters into transactions in the interests of the represented person. In contrast, the trustee only gives written consent to the ward to commit them.
Transactions between guardian and ward
The law prohibits transactions between a guardian and a ward where the guardian is the beneficiary. That is, he cannot buy the apartment of the person under his care. Or, on his behalf, give yourself an object of property of the ward.
Also, transactions cannot be made between the ward and the guardian’s relatives. In this case, relatives include spouses, children, parents, brothers and sisters.
However, transactions in the opposite direction are allowed. For example, a representative may give property as a gift. A prerequisite is that the transaction is free of charge for the ward.
Who are guardians
According to the law, a guardian is a representative of an incapacitated person who exercises full guardianship and protects his interests.
Wards can be minor children or completely incompetent people.
The role of a guardian can be performed by both relatives and strangers. At the same time, they must be fully capable, of adulthood, and not have financial or mental problems.
Types of guardianship:
- Full custody . Established regarding incompetent citizens due to mental disorders and children under 14 years of age. This type gives guardians the most complete rights, since their wards cannot make decisions on their own.
- Guardianship . Recognized over children 14-18 years old. The ward has the right to independently dispose of his property, but must ask permission from the guardian.
- Patronage . Appointed to the infirm and disabled people who have significant physical limitations and cannot care for themselves. At the same time, the ward has the right to make decisions independently, but is not always able to carry them out. For example, it is quite difficult for such people to sign papers or attend court hearings.
Guardianship is appointed by decision of the guardianship authorities after careful consideration of the applicant's candidacy.
The incompetence of a mentally ill person must be recognized by a court.
Video: What is guardianship and who can become a guardian
Possible rights of a guardian to inheritance
Inheritance is possible on two grounds - by will and by law . But you should carefully determine whether the guardian has the right to the inheritance of the ward.
After the death of the ward, the guardian can become an heir under a will . But the will must be drawn up by an adult before he is declared incompetent.
If this document is drawn up by a minor and incompetent, it will be considered invalid. And even the legal representative does not have the right to draw up a will on behalf of the ward.
And the guardian can draw up a will for the ward, as a result of which he will inherit his property.
In the case where there is no will, in 2021 the law provides for 7 lines of legal heirs who are relatives of the deceased.
It is important to take into account that if the guardian is not one of the relatives of the ward and does not belong to one of the seven lines, then by law he cannot claim the inheritance.
The very fact of registration of guardianship does not give any inheritance rights..
It is possible to receive part of the inheritance if the guardian has incurred significant expenses for managing the inherited property. He has the right to reimburse his own funds spent from the property of the deceased. This issue is being dealt with by the guardianship authorities .
Thus, even if a completely single person is under guardianship, after his death the guardian cannot lay claim to the ward’s apartment. If there is no will, all property will become the property of the state or municipality.
