Guardianship of a mentally ill person: benefits and privileges

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In most cases, the development of mental illness does not go unnoticed by relatives (for example, if a mentally ill person is a disabled person from childhood), and they can begin the process of obtaining guardianship in advance. But relatively sudden damage to mental abilities also happens (for example, after an injury or in old age).

In addition to medical and everyday difficulties, the relatives of a sick person face a legal problem - registration of guardianship.

In this article we will look at the procedure for registering guardianship due to illness or mental disorder: where to start, where to go, what documents to prepare?

Guardianship: general concepts and features

The concept of “capacity” means that a person has reached the age of majority and can adequately think, make decisions and manage property.
Incompetent people are children under 18 years of age or mentally ill citizens. In the first case, the responsible persons are the parents. In their absence due to deprivation of parental rights or death, the guardianship authorities will appoint a guardian or trustee (after 14 years). Assigning the status of “incapacitated” to an adult suffering from a mental disorder occurs through the courts. Within 3 days from the announcement of the decision, documents must be delivered to the Public Prosecutor's Office with a requirement to find a guardian for the citizen deprived of legal capacity. The role of the person appointed as a guardian is to represent the rights of the ward and care for him (buying clothes, food, cooking, cleaning). The expenditure of funds (benefits, pensions, alimony) of an incapacitated citizen occurs exclusively for his needs. The person who has been given guardianship rights must report to the PLO about all actions. It is unacceptable to freely dispose of the property of a ward. The exception is cases when the alienation transaction (sale, exchange, lease) will benefit the ward.

Any person who meets the requirements of the guardianship authorities has the right to formalize guardianship, but the emphasis is placed specifically on close relatives (brothers, sisters, spouses, parents). The decision is justified by the low probability of selfish actions and rapid adaptation to the chosen representative.

It is not necessary to provide full care for mentally ill people in all cases. The court may find the defendant only partially incompetent. Guardianship officials will have to find a trustee who will look after the ward and give the right advice. The severity of the disease can be assessed by conducting a psychiatric examination. Minor deviations do not even require the intervention of authorized bodies.

Guardianship of patients with schizophrenia must be formalized without fail. If during the proceedings it was established that an incapacitated citizen could do something to himself or cause harm to others, then he will be placed in a special medical institution for care and treatment.

Guardianship fee

A person appointed as a guardian of a mentally ill person does not expect to receive payments if he has an income and is employed. Sometimes, a mentally ill person needs constant care due to disability and the inability to independently take care of themselves and control their actions. In this case, his legal representative is forced to constantly be nearby, leaving his place of work. Then the legislation provides for payment in the form of remuneration in the amount of 1,200 rubles monthly.

IMPORTANT! The needs of the ward are met through his savings - pensions, social benefits. The representative, using guardianship rights, has access to the accounts. He can withdraw funds to provide the incapacitated person with everything necessary.

The legislative framework

The legislation of the Russian Federation provides for guardianship of an incapacitated citizen in the following articles:

What benefits are provided for guardianship of an incapacitated person?

Caring for an incapacitated person takes a lot of effort and time, which means that the guardian cannot fully support himself. Therefore, the state has developed a number of benefits that are provided to guardians:

• cash payments;
• benefits in obtaining education;
• benefits in payment for housing and communal services in the amount of 50%;
• labor benefits: shortened work week or part-time work.

Other preferences

In addition to material benefits, social benefits are also provided:

• free travel on public transport;
• use of a landline telephone with a 50% discount;
• reducing the amount of tax on one type of transport;
• reduced land tax
• providing a free trip to a health resort;
• use of the property of the person under guardianship, but not to the detriment of the latter.

Where are guardian benefits issued?

Benefits are not accrued automatically. To appoint them, you should contact the relevant authorities:

• social protection department at the place of registration;
• MFC branch;
• registration department dealing with subsidy payments;
• City Administration;
• Pension Fund;
• notary office for drawing up a power of attorney to represent the interests of the ward in various services.

Requirements for candidates

A person who wants to become a guardian of a mentally ill citizen must have certain personal qualities (patience, attentiveness) and meet the requirements of the guardianship authorities:

• do not suffer from infectious pathologies;
• have no criminal record and no addictions (alcohol, drugs);
• be over 18 years of age;
• have housing suitable for maintaining the ward;
• obtain a certificate of absence of life-threatening diseases;
• be willing to perform their duties voluntarily.

If the candidate’s parental or guardianship rights were previously taken away, the guardianship authorities will be forced to reject the application. If all criteria are met, the likelihood of a positive decision is high.

Who is guardianship assigned to?

There are several categories of persons who need guardianship and trusteeship:

1. Minor children left without parents. Until the age of 14, guardianship is established over the child, then guardianship.
2. People with severe psychological illnesses, during which a person cannot make decisions on his own, take care of himself, or be responsible for his actions.
3. people with disabled status
4. people suffering from alcohol, drug addiction and gambling addiction.

Liabilities

A mentally ill citizen who is found incompetent during a trial must be under the constant supervision of a responsible person appointed by the PLO. The list of responsibilities of a person who has received guardianship rights is as follows:

• Conclude transactions and conduct business on behalf of your ward. Usually the point is about representing rights in court, purchasing basic necessities and paying utility bills.
• To care for the person under care, that is, to monitor his health, hygiene, living conditions and nutrition. The caregiver will have to do laundry, cleaning, and cooking as needed.
• Use the funds of a mentally ill person to meet his needs. An expense report is compiled towards the end of the year and submitted to the guardianship authorities.

If a person authorized to care for an incapacitated person discovers partial or complete restoration of the consciousness of the ward, then a petition is filed for a medical examination. If positive changes are identified, it is possible to return the status “competent” through the courts.

According to Art. 1076 Civil Code, people caring for mentally ill citizens are required to be responsible for the actions of their wards. Any damage caused by an incapacitated person must be compensated by his guardian.

The court's decision

A court decision declaring a person incompetent is the main document for appointing a guardian for him. A person declared incompetent has the right, independently or through a representative, to appeal this court decision in order to review it.

If new circumstances are presented that confirm the absence of a mental disorder, the court may decide on the legal capacity of the former patient. A forensic psychological examination is mandatory.

Legal rights of a guardian

Guardianship implies not only an extensive list of responsibilities, but also rights:

• Enjoy benefits guaranteed by the state for performing your duties.
• Protect the interests of an incapacitated citizen in any controversial situations.
• Use funds and income from the property of the ward for his own benefit.
• Donate property or let a ward use it free of charge.
• Receive monthly payments from the state to compensate for the guardian’s time.

Any actions aimed at obtaining personal benefit at the expense of money or property of an incapacitated person are strictly prohibited. If the guardian does not fulfill his duties in good faith, he will be punished. Usually the court imposes punitive damages or revokes the guardianship rights.

Transactions regarding the rental, purchase or sale of property of a mentally ill person are permissible only with the approval of the guardianship authorities. The guardian does not have the right to make such decisions independently.

A person who has guardianship rights cannot inherit the property of the ward. An exception to the rules is when, before a verdict of incapacity is rendered, a citizen has filled out the relevant documents (inheritance agreement).

Guardian's responsibility

The law places responsibility on the guardian for the performance of duties

The guardianship department exercises control over the performance of the duties of a guardian. To check living conditions, specialists conduct regular visits to:

• 1 time - in the first month of guardianship;
• 1 time – per quarter in the first year of guardianship;
• 2 times per year in subsequent years.

Every year, before February 1, the guardian is required to submit a report for the past year to the guardianship department. The document contains information about the safety of property and spending of funds of the ward.

If facts of improper performance of duties are revealed, the guardianship department is obliged to remove the citizen from guardianship. If there are facts that indicate a crime has been committed, the specialist must inform the police department.

Privileges

If a person caring for a mentally ill citizen is unable to work, then the state will pay him benefits. It is presented in the form of a pension supplement and amounts to 1,200 rubles. To receive compensation, you must provide the required package of documents to the pension fund:

• statement of the person acting as a guardian;
• ID card and work book (guardian and ward);
• verdict of the PLO on granting guardianship to an incapacitated citizen;
• documents confirming that the guardian does not receive any payments.

You can find out more details from the pension fund employees.
If a person receives alimony, any benefits, a scholarship, or has other official income, then he is not entitled to compensation. Guardianship of a mentally ill person has its advantages, which are represented by state-guaranteed benefits:

• There is no need to pay for travel on public transport if the guardian travels with the ward.
• An incapacitated citizen has the right to receive a referral for free sanatorium treatment.
• Only half of the required amount of tax assessment for the purchase of a passenger car is paid.
• The notary charges the guardian only 50% of the full cost for his services.
• Utility bills are only half paid.
• A person fulfilling a guardianship duty may receive free legal advice.
• When filing a claim with the court for damages in the amount of up to 1 million rubles, you will not have to pay the state fee.

A clear advantage for able-bodied people is the length of service accrued for guardianship of an incapacitated citizen. For 1 year of performing duties, you can receive 1.8 pension points. In the future, the guardian will be entitled to pension payments.

How to refuse guardianship?

A mandatory condition for the appointment of guardianship is the voluntary consent of the guardian (Clause 2 of Article 11 of the Federal Law of the Russian Federation “On Guardianship...”).

If after some time the desire to take care of a mentally ill person, represent his rights, manage his income dries up, the guardian has the right to refuse guardianship duties . To do this, he must submit a written application to the PCO, in which he sets out the reasons for refusing guardianship (deteriorating health, old age, change of place of residence, the need to place the ward in a specialized medical institution for treatment).

Other reasons for termination of guardianship are the following circumstances (Article 40 of the Civil Code of the Russian Federation, Article 29 of the Federal Law of the Russian Federation “On guardianship..."):

• restoration of the ward’s legal capacity by court decision;
• death of a guardian;
• death of a ward;
• removal of a guardian from fulfilling guardianship duties by decision of the Public Organization (if the guardian fails to fulfill his duties or abuses his powers). In this case, further guardianship or trusteeship (including over minor children) will be impossible.

Expert opinion

Dmitry Nosikov

Lawyer. Specialization: family and housing law.

Mental illness is one of the grounds for assigning guardianship. However, it is first necessary to deprive the citizen of legal capacity. After a court decision is made, guardianship must be awarded within 30 days. If difficulties arise when obtaining guardianship, you should obtain the support of a lawyer. A site specialist will provide you with legal assistance online. To do this, just leave a request in the contact form.

If you have any questions that you did not find answers to in the article, you can ask our lawyers. We are ready to advise you free of charge regarding the registration of guardianship due to illness, give advice, predict the timing and results of the procedure, and draw up an individual step-by-step plan.

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Author of the article

Irina Garmash

Family law consultant.

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612

Deprivation of legal capacity of a mentally ill citizen

People over 18 years of age can be assigned “incompetent” status through legal proceedings.
Before filing a claim, it is necessary to obtain the result of a medical examination in a psychiatric hospital. The patient can undergo all tests voluntarily, having previously signed a consent, or forcibly if there is a risk of harm to himself or others. Having received the results of the examination, you can proceed to drawing up an application. A narrow circle of people have this right:

• Relatives.
• A representative of a hospital or boarding school housing a mentally ill person.
• Representative of the guardianship authorities.
• Employees of the medical institution in which the citizen is listed as a patient

Grounds for deprivation

The guardianship regime provides for the assignment of rights and responsibilities to citizens in relation to minor children, as well as other incapacitated persons. The basis for the appointment of a guardian is the act of establishing guardianship. The circumstances that will lead to the deprivation of guardianship are recorded in Art. 29 of Law No. 48-FZ:

1. personal statement of the guardian;
2. death of a guardian or ward citizen;
3. expiration of the guardianship period, if it was established by the act;
4. restoration of citizens' legal capacity;
5. the age of majority of the child under guardianship;
6. improper performance of duties;
7. violation of the rights of the person under guardianship, including abandonment without assistance or supervision, pursuit of selfish interests, etc.;
8. violation of the rules for the protection and disposal of the property of the ward.

Of particular importance is the forced deprivation of guardianship, since it is allowed in case of a significant violation of the legitimate interests of citizens. Guardianship institutions are obligated to identify such cases, and any interested parties can file a complaint regarding these facts.

When it is necessary

A child under 14 years of age does not have the right to live alone, even if he has housing and money. A guardian is appointed for him. A completely independent young person from 14 to 18 years old, according to the law, must be either in a state institution (orphanage) or in a foster family on the basis of guardianship. Exception: over 16 years of age, with own income, recognized as emancipated (capable).

Guardianship can be voluntary-compulsory (forced), when it is formalized in court, or deliberate, due to the decision of the child’s parents.

When guardianship or conservatorship is unavoidable:

• after death or deprivation of parental rights;
• with partial restrictions on the fulfillment of their obligations in raising a child;
• by a court decision, the father (mother) is not able to carry out the necessary activities;
• if the parents are sick;
• the father or mother is under investigation, in prison, wanted or missing.

Parents themselves can apply to the guardianship authorities to appoint a guardian for their child for a certain period. Reason: due to insurmountable circumstances (business trip, shift). This will not be considered abandonment of the child and will not entail deprivation of parental rights. It is enough to provide compelling evidence of the inability to fulfill the duties provided for by the Family Code.

Infants born from a minor mother (under 16 years of age) need a guardian. According to Article 57 of the RF IC, a trustee (guardian) is appointed with the consent of the child, if he is able to do so due to his age (from 10 years). He is entitled to monthly payments to purchase food, clothing, and personal hygiene items.

The procedure for deprivation

One of the key responsibilities of a guardian is to regularly report on the exercise of his powers. When checking this document, facts of violation of the rights and legitimate interests of warded citizens may be established. In addition, information about improper performance of duties on the part of the guardian may be contained in the following acts:

• court decisions in civil, criminal and administrative cases;
• materials of the commission on juvenile affairs;
• the prosecutor's proposal based on the results of the legality check;
• written requests from interested parties who have become aware of cases of improper attitude of the guardian to his duties.

The verification of these circumstances is carried out by the guardianship department. The guardian himself has the right not only to give his explanations or objections regarding the claims that have arisen, but also to appeal the final act.

The following circumstances may include improper performance of duties:

1. committing illegal actions against a ward citizen, including criminal offenses and administrative offenses;
2. alcohol and drug abuse;
3. antisocial lifestyle, including the involvement of the ward in the use of alcohol and drugs;
4. deterioration of housing and living conditions at the place of residence of the person under guardianship;
5. lack of full supervision of the ward.

To confirm or refute these facts, guardianship authorities have the right to receive any documents and information, including from materials of criminal and administrative cases. A survey is conducted of the ward citizen, and teachers and psychologists are invited to obtain information from minor children.

The selfish goals of the guardian may be to receive government benefits, use benefits for utility bills, travel on public transport, etc. In addition, wards can be used to increase the size of the family when receiving land and housing from the municipal fund. Identification of such cases is possible if the received budgetary funds and benefits were used for the personal purposes of the guardian, and not for his wards.

The responsibilities of a guardian may include taking measures to preserve property and manage the money and real estate of the ward citizen. If such entrusted assets or funds were sold without the consent of the guardianship institution, the transaction may be declared invalid and the guardian will lose his rights.

If the housing and living conditions at the guardian’s place of residence do not comply, an inspection report must be drawn up. For this purpose, specialists from the SES (Rospotrebnadzor) and other control agencies are invited. During the examination, the following facts may be revealed:

1. deterioration of living conditions as a result of the sale or exchange of real estate;
2. creation of unsanitary living conditions for the family of the guardian and the ward himself;
3. lack of conditions for the normal development, upbringing and education of a minor child;
4. lack of response from the caregiver to previously identified deficiencies.

The materials of such verification will be used by the guardianship institution to issue an act. When making a decision, the possibility of eliminating the identified violations is also taken into account - for such cases, the duties of the guardian may be suspended for a certain period.

If a citizen himself submits an application for early termination of guardianship, he must indicate the reasons for such a decision. In this case, the final act of early termination of guardianship may be accompanied by the appointment of a new guardian.

Article 29 of Law No. 48-FZ also allows temporary removal from the duties of a guardian. This may be due to the emergence of contradictions between the guardian and the ward - if such circumstances are eliminated, the guardianship regime is restored in full.

Failure to comply with requirements for a guardian

When registering guardianship, special requirements are placed on the personality of the guardian. If, after the establishment of guardianship, circumstances are identified that prevent the appointment of a guardian, it is subject to termination. Such circumstances include:

1. conviction for committing a crime against life and health, sexual integrity and a number of other elements - deprivation of guardianship will follow even if the victim of the crime was a person not under guardianship;
2. establishing medical diagnoses of chronic alcoholism and drug addiction;
3. incapacity of the guardian established by a judicial act;
4. the presence of diseases that impede care;
5. the caregiver’s need for outside care, as well as other reasons.

In these cases, the guardian's actions may not necessarily violate the interests of the ward, but his personal characteristics do not allow him to provide adequate care. Since the guardian is involved in verifying the grounds for deprivation, he may voluntarily agree to early annulment of the deed.

Guardianship will also be canceled if, when appointing it, false information about the identity of the guardian or forged documents was provided. For example, a potential guardian may deliberately falsify a medical certificate in order to achieve a positive decision.

Features of registration of guardianship

The resulting court verdict is sent to the PLO. A person who wishes to assume guardianship rights must provide the appropriate package of documents to the guardianship authorities:

• identity cards and personal accounts (guardian and ward);
• medical examination results;
• a certificate indicating no criminal record;
• characteristics from the place of work;
• handwritten autobiography;
• certificate from the pension fund (protected);
• the judge's verdict recognizing the incapacity (of the ward);
• a certificate confirming the disability of the person requiring guardianship;
• documents proving the applicant’s income and housing;

If other relatives are registered in the housing to which the candidate for guardianship intends to bring a mentally ill person, then their written consent will be required. After studying the provided documents, the PLO will conduct an examination of the expected future place of residence of the incapacitated citizen and make a final decision, based on the results obtained.

Required documents

Depending on whether the potential guardian and his ward are close relatives or not, the list of required documents will be different.

The relative must submit the following documents:

• passport of a citizen of the Russian Federation;
• a document confirming the presence of a family relationship;
• marriage document (if available);
• the applicant's autobiography.

For foreign citizens, Russian legislation imposes more serious requirements. The following documents must be submitted:

• passport;
• title documents for the applicant’s residential premises;
• certificate about the condition of the living space;
• certificate in form 2x-personal income tax for 12 months;
• written consent of all family members;
• document that the applicant has completed training;
• a certificate from a medical institution about the applicant’s health status;
• if available - marriage certificate;
• autobiography.

Cancellation of guardianship rights

Independent termination of guardianship is possible only upon the death of the guardian or ward. In other cases, representatives of the PLO must have good reasons for this:

• The person appointed for guardianship is no longer able to fulfill his duties due to deterioration in health, for example, if he became ill with a severe infectious pathology, became disabled, or was forced to move.
• The ward has become dangerous to others or himself, which is the reason for his transfer to a special medical institution.
• The judge made a decision to restore legal capacity at the request of the guardian or guardianship officials.
• The person who has been granted guardianship rights fails to cope or abuses the responsibilities.

A representative of the PLO, citing the grounds for annulment of guardianship, has the right to submit an application to the prosecutor's office or the district court department. Further actions depend on the circumstances of the case.

A person who wants to care for a mentally ill citizen who has been declared incompetent by a court must submit an application to the OOP staff. They will familiarize themselves with the situation and, upon approval of the candidacy, will grant the applicant guardianship rights. The responsibilities of the guardian will include caring for the ward and representing his interests. As compensation, the state will provide certain benefits and payments to the person caring for a mentally ill person.

The procedure for registering guardianship

After making the decision, the candidate must independently express his desire to care for the mentally ill. The process of assigning a cartridge is quite lengthy. It includes a number of mandatory steps. These include:

1. Recognition of a person as mentally ill.
2. Establishing a person's incapacity through the court.
3. Submission of documentation necessary for the appointment of a patron.
4. Consideration of the application by the authorized body and conducting a material and household examination of the applicant.
5. Making a decision and signing an agreement with the E&P body.

Important! The issuance of opinions on the mental illness of persons is within the competence of the state doctor. Often the procedure is carried out at the request of government agencies. The court makes a final decision and deprives the citizen of legal capacity.