Patronage of the elderly: how to register correctly

What is patronage

Article 123 of the Family Code considers patronage of a child from an orphanage as a type of guardianship and trusteeship. Its appearance in Russia is preceded by historical aspects, since it first appeared during the time of Catherine II. Much later, during the Second World War, patronage was used to raise the children of fallen soldiers. It should be noted that patronage has become even more widespread outside our country, where foreign analogues, the Foster families, have been operating for many years. Therefore, to determine what patronage and foster family are, it is best to turn to the legal doctrine.

Foster care is considered to be a form of family placement of children, within which the rights and responsibilities for their upbringing, as well as the protection of rights and interests, are necessarily distributed between the foster carer and the guardianship authority or an organization authorized by it.

The essence of such a device is that it allows for full-fledged pedagogical and educational work throughout the entire time the child is in the family. At the same time, foster care is recognized as a very flexible form of arrangement, since it allows children to be transferred for foster care even before they acquire official legal status - immediately after being removed from problem families, instead of being sent to an orphanage.

Please note that patronage does not operate throughout Russia, but only in those regions where it is defined by law and at the same time special organizations have been established that are authorized to provide foster care by the guardianship authorities - the so-called patronage service. This organization is engaged in concluding special foster care agreements with families and their subsequent support.

It should be noted that patronage, along with a foster family, is a paid form of guardianship - families receive a reward for this.

Therefore, patronage is often perceived not only as a form of education, but also as a type of social assistance to children. To understand this, it is necessary to consider the existing types of patronage.

Types of patronage

To do this, it is necessary to turn to both the legal doctrine and the peculiarities of regional legislation, which stipulates that patronage in the Russian Federation is implemented in at least three forms:

Commentary to Art. 41 Civil Code of the Russian Federation

1. Article 121 of the 1969 Code of the Law of the Russian Federation of the RSFSR contained an indication that guardianship is established over capable adults, if due to their health conditions they cannot independently exercise their rights and fulfill their duties.

The current version of the commented article (Federal Law of April 24, 2008 N 49-FZ) allows us to come to the conclusion that patronage over capable citizens does not apply to forms of guardianship and trusteeship.

According to Art. 31 of the Civil Code of the Russian Federation, guardianship and trusteeship are established to protect the rights and interests of incapacitated or not fully capable citizens. Despite the fact that the institution of patronage is intended specifically to protect the rights of an individual, moreover, an individual who, for health reasons, is unable to take care of himself on his own, its tasks do not coincide with the tasks of guardianship. A person under patronage is fully capable. This means that it can perform all legally significant actions independently. No one has the right, without appropriate authority, to replace the will of this person with his own will.

Thus, patronage cannot be established in cases where the ward suffers, for example, from senile dementia. Manifestations of defects in the formation of will or expression of will in a person should force the guardianship and trusteeship authority to initiate a civil case to declare the person incompetent, which will result in the appointment of a guardian, but not an assistant. This is the preliminary function of state authorities or local self-government to identify and place persons in need of guardianship in order to initiate legal proceedings if signs of a serious mental disorder are detected. It is for this purpose that Art. 281 of the Code of Civil Procedure of the Russian Federation grants the right to submit a corresponding application to the court to the guardianship and trusteeship authority, psychiatric or psychoneurological institution.

All that is needed as assistance to a person who does not suffer from a mental disorder, but who, for health reasons, cannot independently exercise and protect his rights and fulfill his duties, are legal actions performed by another person in accordance with the own will of a citizen under the patronage . It is for this reason that the basis for directly performing such actions is an agency agreement, a property trust management agreement, or another transaction.

Monograph by L.Yu. Mikheeva “Trust management of property. Commentary on Legislation" is included in the information bank.

For more details on the specifics of such an agreement for patronage, see the book: Mikheeva L.Yu. Trust management of property. M., 1999. S. 130 - 131.

The rules provided for in the currently commented article are established solely for the purpose of protecting the rights of an adult capable person and do not allow the assistant to derive any property benefit other than that provided for by the contract of assignment or trust management. The patronized person does not require care, provision of food, treatment, or education from an assistant. The assistant does not have the right to represent the interests of an adult capable citizen in all legal relations without exception, and he is not the legal representative of the latter. Both in judicial proceedings and in enforcement proceedings, criminal proceedings, proceedings in cases of administrative offenses, and in other legal relations, the citizen participates independently, which indicates the exclusively property orientation of patronage. The assistant, acting on the basis of a property trust management agreement, agency agreement or other agreement, disposes of the property, pays his client’s bills, and exercises his other property rights, but only within the framework specified by the content of the agreement.

Patronage does not coincide with social services for citizens, since it does not consist of performing such actual actions as “organizing meals, including home delivery of food; assistance in purchasing medicines, food and industrial goods of prime necessity,” and other similar actions provided for by law and aimed at maintaining a person’s health. The task of patronage is to ensure the property rights of a capable citizen by performing, as a rule, legal actions on the basis of an agency agreement or trust management of property. Due to the fact that the patronage assistant does not bear the entire burden of responsibility for the patronized person (including responsibility for his actions), patronage cannot be classified as a form of placement for citizens.

2. The article under comment defines the procedure for establishing patronage over legally capable adult citizens. The assistant is appointed by the guardianship and trusteeship body within a month from the date of identification of an adult capable citizen who, for health reasons, cannot independently exercise and protect his rights and fulfill his duties.

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At the same time, the legislator does not indicate how the needs of the specified adult capable citizen will become known to the guardianship and trusteeship authority. In any case, the guardianship and trusteeship authority is obliged to find an assistant if the citizen himself requests it.

To appoint an assistant, his will is necessary, as well as the will of the citizen over whom patronage is established. Both must express their will in writing.

The immediate basis for the emergence of patronage is an agency agreement, a property trust management agreement or another agreement that is concluded between the assistant and the patronized person, who independently determine the terms of the agreement. The guardianship and trusteeship body does not take part in the conclusion of this agreement, although it can assist the patronized citizen in drawing up the document.

3. Current version of Art. 41 of the Civil Code of the Russian Federation does not define the circle of persons who can be appointed assistants. These can be both citizens and legal entities, since the assistant is required to perform legal actions in the interests of the patron.

At the same time, an employee of an organization providing social services to an adult capable citizen (social service, social or gerontological center) who needs to establish patronage over him cannot be appointed as an assistant to such a citizen.

4. The tasks of the guardianship and trusteeship authorities in patronage are reduced not only to the appointment of an assistant, but also to subsequent monitoring of the assistant’s performance of his duties as an adult capable citizen. Carrying out such control, the guardianship and trusteeship authority is obliged to notify the citizen under patronage of violations committed by his assistant and which are the basis for termination of the agency agreement, property trust management agreement or other agreement concluded between them. The guardianship and trusteeship authority does not have the right to independently terminate patronage, since the basis for the emergence of patronage relations is the corresponding agreement.

The grounds for termination of these agreements are determined by the agreements themselves or by law (see, for example, Art. 977 and 1024 of the Civil Code).

Legislation

For the first time, education in the form of foster care was considered by the Family Code: the creation of a foster family, according to Art. 123 SK, is one of the custodial forms of family education. Later, similar provisions were set out in Art. 14 Federal Law “On guardianship and trusteeship”. This is, in fact, the only mention of this form of education in federal legislation - according to these norms, the possibility of its application is transferred to the regions and is made dependent on the presence of appropriate legislation in them.

Therefore, regulations on foster care and other regulations are adopted in the constituent entities of the federation: today more than 40 regions have them, including Moscow and the region, Krasnodar Territory, Bryansk, Vladimir, Pskov, Samara and a number of other regions. Regions regulate all regulations regarding patronage independently.

In 2012, there was an attempt to adopt a corresponding federal regulation, but the law on social patronage caused a wave of criticism and was subsequently rejected by parliament. His opponents, in particular, feared the introduction of the institution of juvenile justice in the country and the creation of social risks that would not take into account “Russian family traditions.” Against the backdrop of controversial attitudes in society and negative reviews from the country's top leadership, they decided to abandon this idea.

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“Social patronage is established by the guardianship and trusteeship body if, based on the results of an examination of the living conditions, upbringing and development of a minor, carried out by the guardianship and trusteeship body in the manner prescribed by Article 122 of the Family Code of the Russian Federation, it is established that the parents or other legal representatives of the minor in in a socially dangerous situation, create by their actions (inaction) conditions that impede his normal upbringing and development, and (or) negatively influence his behavior.

The term “minor in a socially dangerous situation” is disclosed in Chapter 1 of Federal Law No. 120: “a minor in a socially dangerous situation is a person who, due to neglect or homelessness, is in an environment that poses a danger to his life or health or is inappropriate requirements for his upbringing or maintenance, or commits an offense or antisocial actions " [16].

Differences from other forms of education

Like adoption, guardianship and trusteeship, patronage is a form of family education. They all have something in common and something special that makes them stand out from others. Adoption, for example, creates family ties between the parties, guardianship and trusteeship provide full care not only for the child, but also for adults, and a foster family provides paid care.

An identifying feature of patronage is the delimitation of parental rights and responsibilities between biological parents (if they are not deprived of rights), the guardianship authority and the teacher.

That is, the main difference between a foster family and a foster family is that the latter is not the sole legal representative of the ward.

It is necessary to understand that in this context it is the upbringing with the transfer of the child to the family, accompanied by the professional interaction of teachers, psychologists and educators, that is considered. It provides for a wide range of children to be transferred, preliminary training of parents, as well as maintaining ties with the blood family, which is the difference between patronage and support with guardianship.

Guardianship, trusteeship and patronage

6. The guardian does not have the right, without the prior consent of the guardianship and trusteeship body, to carry out, and the trustee does not have the right to consent to, transactions involving the alienation, including exchange or donation, of the ward’s property, leasing it (lease), for free use or in pledge; transactions entailing the renunciation of the rights belonging to the ward, the division of his property or the allocation of a share from it, as well as any other transactions entailing a decrease in the property of the ward. In order to prevent abuse, a guardian (trustee), their spouses and close relatives are prohibited from entering into transactions with wards, with the exception of transactions involving the transfer of property to the ward as a gift or free use.

When choosing a guardian (trustee), the relationship between him and the person transferred under guardianship (trusteeship) is taken into account, and, if possible, the wishes of the ward are also taken into account. The only parent of a minor child has the right to appoint a guardian or trustee for the child in the event of his or her death. A minor citizen aged 14 to 18 years has the right to submit an application to the guardianship and trusteeship authority for the appointment of a guardian, indicating a specific person.

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Restrictions for teacher candidates

As already mentioned, the selection criteria for educators are determined by the legislation of the constituent entities of the federation for each region separately. Traditionally, these can be adult, capable citizens, regardless of gender, who have the appropriate conditions and have undergone special training.

The exceptions are:

incapacitated and limited in capacity citizens;
persons deprived or limited in parental or guardianship rights, as well as former adoptive parents;
persons whose educational abilities are limited due to health reasons;
persons without permanent residence or without their own housing;
convicted of crimes against life and freedom or other grave and especially grave crimes.

Potential foster parents undergo preliminary training in a special service authorized by the guardianship authorities; the issue of the possibility of transferring children to them is decided based on the results of such training.

Features of legal patronage

The request for such guardianship must come from the citizen himself. Upon his application, the social service assigns an assistant (trustee) to the person in need. If the latter’s candidacy does not suit the applicant, he may reject such appointment. Otherwise, an agreement, trust management agreement, or assignment is concluded between these two persons.

In order for a trustee to carry out household or any other transactions on behalf of his ward, the latter’s consent is required. At the same time, the patronage service, guardianship and trusteeship authorities carefully monitor the integrity of their employee.

The trust management agreement is legally terminated in a number of specific cases:

trustee's request;
initiative of the mentee;
improper performance of his duties by an assistant;
death of one of these persons.

Speaking about patronage and patronage - what is the difference between them - it is important to note the varieties of the latter concept.

Rights and responsibilities of a teacher

As we have already found out, a distinctive feature of patronage is the delimitation of rights and responsibilities in relation to the pupil between educators, blood parents and the relevant service. The scope of powers, including the rights and obligations of each of these parties, are determined by the terms of the agreement, taking into account the interests of the child and the capabilities of the family to which he is transferred, as well as local legislation regulating this area.

The teacher is considered as an employee, his work is paid and he is given paid leave, which allows us to talk about the labor nature of the emerging relationship. At the same time, he is entrusted with the responsibilities of maintaining the child, partially raising him, ensuring safety, providing medical care, and resolving issues about his education.

As a rule, the teacher is responsible for the living conditions of the child, but at the same time it must be remembered that such foster care does not give rise to any inheritance or alimony legal relations.

Moreover, in a number of regions, restrictions have been established according to which the teacher cannot be entrusted with the following powers:

on the protection and implementation of property rights of pupils;
on representation when considering the issue of deprivation of the rights of his parents;
to resolve issues related to leaving the country.

Who is guardianship established over?

The provisions of the Federal Law “On Guardianship and Trusteeship” and other regulatory legal acts of the Russian Federation adopted in accordance with it apply to relations arising in connection with the establishment, implementation and termination of guardianship or trusteeship and not regulated by this Code.

3. Guardianship and trusteeship of minors are established in the absence of their parents, adoptive parents, deprivation of parental rights by the court, as well as in cases where such citizens for other reasons were left without parental care, in particular when parents evade their upbringing or protection of their rights and interests.

Registration of patronage

It should be noted that patronage is characterized by a simpler registration procedure compared to other forms of guardianship. At the same time, it involves undergoing such mandatory procedures as:

collection and submission of documents;
undergoing special training;
conclusion of an agreement;
transfer of a child to a family;
subsequent cooperation with authorized bodies.

Let's look at the most significant points in more detail.

Where to contact

Guardianship authorities do not independently arrange for foster care for pupils: they delegate the authority to do this to specially created bodies - foster care services. A citizen who wants to become a teacher must contact these services. When submitting an application and documents there, citizens will have to undergo special training, the results of which will issue a conclusion on the possibility of signing a patronage agreement.

After concluding such an agreement, specialists select children and parents based on psychological compatibility, after which the children are handed over to them for upbringing - from that moment on, the teacher becomes an employee of the foster care service. Patronage as a technology of social work guarantees the educator professional assistance from specialists in the future, that is, even after the transfer of children.

Package of documents

When contacting the authorized service, candidates for educators must submit:

Grounds for establishment and termination

Guardianship or guardianship is established over children who are left without parental attention.

Children are left without parental attention for various reasons when parents:

died;
deprived of parental rights;
are incompetent;
lead a lifestyle incompatible with raising a child.

There is also such a thing as temporary or voluntary guardianship.

Voluntary guardianship is issued when the following situations arise:

parents move to another country or city for a long period of time for work or study;
in an incomplete family, one of the parents ends up in prison or is hospitalized for a long time;
if the minor is receiving education in another city or country.

All this provides grounds for obtaining temporary guardianship until the parents return to fulfilling their responsibilities in raising the child.

Termination of guardianship or trusteeship can be caused by various reasons:

if the guardian or trustee has died;
upon reaching the age of 18 years;
if the trustee refuses guardianship;
if the guardian or trustee fails to fulfill their responsibilities;
upon expiration of the temporary contract;
deterioration of the caregiver's health;
child abuse.

Guardianship can also be terminated due to the emancipation of a ward who has reached the age of 16. Emancipation is the declaration of a minor as fully capable if he works and an employment contract has been concluded with him or when he carries out entrepreneurial activities. This procedure is carried out by the guardianship authorities with the full consent and approval of the trustees.

The basis for assigning patronage may be:

presence of a serious illness;
disability;
paralysis;
physical injury;
elderly age.

In all these cases, a person cannot care for himself, as a result of which an assistant is appointed by the guardianship authorities. In this case, there is a mandatory condition - the person in need of patronage must be capable, that is, understand what he is doing and why.

If the guardianship authorities detect signs of gross violations in the assistant’s actions, the contract with him is terminated, after which the patronage is terminated.

Violations are as follows:

the assistant influenced the will of the ward;
laid claim to his property, finances;
performed his duties poorly;
treated his ward rudely.

In addition, the patronage agreement can be terminated by mutual consent of the parties.

Payments to teachers

How much foster parents are paid, as well as the types of payments due to them, are determined in each region separately. As a rule, educators who have signed a patronage agreement can claim:

A one-time benefit when transferring a child to a family is 18,004 thousand rubles (indexed since February).
Funds for child support at the local level, which depend on his age and are issued for each child. For example, in Moscow it is 16.5 thousand rubles for a child under 12 years old and 22 thousand rubles for children under 18 years old. If there are three or more children in the family, then the amounts are 19.8 and 25.3 thousand rubles, respectively, if the child is disabled - 27.5 thousand rubles. In addition, 928 rubles are paid to pay for housing and communal services and telephone services.

In addition, educators can count on compensation payments, such as housing and utilities.

Removal of a child

As we have already said, the foster care agreement determines the responsibility of the parties, including the responsibility of the foster carer for compliance with the conditions of detention, upbringing and other aspects of the child’s residence in such a family. As a rule, such families are under constant supervision of specialists, since patronage provides for constant personal contact between the authorized service and the teacher.

This allows timely identification of violations on the part of the foster family, expressed in violation of the rights and interests of the child, or, for example, the conditions of his detention under the contract. In this case, the authorized services draw up a violation report, remove the child from the foster family, and terminate the contract with the teacher himself.

BILL What is social patronage and over whom it can be established

We have already quoted paragraph 1 of Article 8 [14]: “Social patronage is established... if... it is established that parents or other legal representatives of a minor in a socially dangerous situation create by their actions (inaction) conditions that impede his normal upbringing and development, and (or) negatively influence his behavior."

On the contrary, the vague wording used in the bill, which makes it possible for their extremely broad interpretation, suggests that the law is aimed not just at covering families in a wide range of conditions, but literally at all existing families in general! In accordance with the bill, social patronage can be established over any family.

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