Over whom guardianship is established and assigned: what categories of citizens can be granted guardianship in Russia, conditions

Regulatory and legal documents governing guardianship and trusteeship

Guardian children are young citizens of the Russian Federation who are appropriately raised and supported by the bodies of the board of trustees, or by adoptive parents or other legal guardians. On the territory of the Russian Federation, guardianship and trusteeship of all minor children is regulated by the following provisions of the regulatory framework:

1. Civil Code of the Russian Federation, articles 31-34 of the current document.
2. Family Code of the Russian Federation, chapter 20.
3. Housing Code of the Russian Federation
4. Federal Law “On Guardianship and Trusteeship”
5. Resolutions of the Government of the Russian Federation and the Supreme Court.

What is guardianship?

Guardianship is a form of placement for minor citizens or persons declared completely incompetent in court, who cannot understand the nature and consequences of the actions they commit. This definition is given by the Federal Law “On Guardianship and Trusteeship” No. 48-FZ.

Judicial practice under Article 148 of the RF IC:

Decision of the Supreme Court: Determination No. 39-G10-1 of March 31, 2010 Judicial Collegium for Civil Cases, cassation

Decision of the Supreme Court: Determination N 305-ES16-14896 dated November 18, 2016 Judicial Collegium for Economic Disputes, Cassation

Decision of the Supreme Court: Decision N AKPI14-1392 dated January 28, 2015 Judicial Collegium for Civil Cases, first instance

Decision of the Supreme Court: Determination N KAS10-343 dated 08/03/2010 Cassation Board, cassation

Decision of the Supreme Court: Determination N 53-APG15-50 dated 10/14/2015 Judicial Collegium for Civil Cases, appeal

Decision of the Supreme Court: Determination No. 5-КГ16-84 of June 28, 2016 Judicial Collegium for Civil Cases, cassation

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Guardianship and trusteeship - what is the difference?

Guardianship is established for children under the age of 14, trusteeship for children aged 14 to 18. After 18 years of age, the child is recognized as fully capable, as a result of which he no longer needs guardianship. An exception will be a child with a disability.

Distinctive features of guardianship and trusteeship:

• Protected person. In case of guardianship, these can be children under 14 years of age, as well as completely incompetent citizens; in case of guardianship, these can be children from 14 to 18 years of age, as well as persons with limited legal capacity.
• Range of duties. A guardian actually replaces parents for a child or an incapacitated person, while a trustee is endowed with significantly fewer rights and responsibilities.
• Property disposal rules. The guardian makes important transactions on behalf of the ward and, in certain cases, with the consent of the guardianship and trusteeship authorities. The trustee only gives consent to the ward to carry out certain transactions.
• The circle of persons included in legal relations. In guardianship it is the guardian and the ward; in guardianship it is the trustee and the ward.

In general, we can conclude that the concepts of guardian and trustee are very similar to each other, although they have a number of certain features.

Termination of guardianship

Guardianship or trusteeship may be terminated on time or early. This is possible in the following cases:

1. According to the law : over a minor - when he reaches the age of 14 years (guardianship turns into trusteeship), or when the minor reaches the age of 18 years (guardianship is terminated, since the person becomes fully capable);
2. over a minor child - after the reason for his receiving the status of a minor left without parental care is canceled (for example, the mother has restored parental rights);
3. over an incapacitated adult - if he restores his legal capacity;
4. over any ward - after his death, or the death of a guardian or trustee.

Depending on the circumstances under which the guardian was removed from the performance of his duties, various measures of liability may be applied to him:

• compensation for material damage;
• criminal prosecution;
• administrative punishment.

So, we found out that Russian legislation clearly establishes and defines:

• categories of citizens over whom guardianship can be established;
• categories of citizens who can become guardians;
• circumstances under which guardianship may be assigned;
• situations in which it is possible to terminate it,
• other important circumstances of the appointment of guardianship or trusteeship.

In order to take custody of a minor child or an incapacitated adult citizen, the candidate for guardianship must independently apply to the guardianship and trusteeship authorities at the place of residence of the future ward with an application for the appointment of guardianship.

If any difficulties arise during the collection of necessary documents or in the process of registering guardianship, you can seek help from the specialists of our website. Our lawyers will advise you and, if necessary, provide any other legal support.

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Grounds for appointing a guardian

A guardian may be appointed in cases where the parents of a minor:

• died;
• recognized by the court as missing;
• deprived or limited in parental rights;
• declared incompetent by a court decision;
• cannot support their child due to a long-term serious illness;
• are absent for a long time (for example, they are on a long business trip, or the court sentenced them to imprisonment and they are in prison);
• abandoned the child;
• create a constant threat to their life and health;
• are themselves minors under the age of sixteen.

For adult citizens, the basis for appointing a guardian can only be deprivation of his legal capacity by court.

Until a legal representative of an incompetent citizen is appointed (it makes no difference - an adult or a minor), responsibility for him lies with the district or city department of guardianship and trusteeship at the location of the incapacitated person.

Basic Concepts

The purpose of guardianship of incapacitated people and children is to protect their personal and property interests. The guardian is responsible for the upbringing, care and maintenance of these categories of citizens. This form of device is regulated by the provisions of the Civil and Family Code of the Russian Federation.

Guardianship and trusteeship are established in relation to:

• Children left without parents;
• Citizens with mental illnesses;
• Disabled people of groups 1 and 2;
• People suffering from various types of addiction (alcohol, drugs, gaming).

Guardianship and trusteeship of incapacitated citizens

In Russia, a person becomes legally competent upon reaching the age of 18. Due to certain circumstances, some people cannot correctly assess the surrounding reality, their actions and make decisions independently. This happens for the following reasons:

• Due to a serious illness;
• Due to a mental disorder;
• Elderly age.

In court, these citizens are declared incompetent, and a legal representative is appointed for them. There are several types of guardianship for incapacitated people. These include:

Guardianship and guardianship of a child

Children who have become residents of orphanages or have lost their parents for various reasons can find a legal representative. In addition, guardianship and trusteeship are established over sick children or teenagers in juvenile detention centers.

Expert commentary

Shadrin Alexey

Lawyer

Guardianship and guardianship are two different concepts. Young children under 14 years of age are taken under guardianship, and guardianship is possible for children over 14 years of age.

These forms of device are used for:

• Education of minor citizens;
• Protection and representation of interests.

The appointed representative must be responsible for the ward. He is allowed to carry out part of the transactions and manage the child’s real estate.

Purpose of establishing guardianship or trusteeship

Every citizen of the Russian Federation by law has two legal characteristics:

1. Legal capacity . It implies the ability of a person to have the rights and obligations provided for by Russian legislation.
2. Capacity . This implies the ability of every citizen of the Russian Federation to exercise his rights, have certain responsibilities, and also act independently in certain legal relations between him and other individuals or legal entities.

The first legal characteristic – legal capacity – is established for every citizen of the Russian Federation from birth and is valid until his death. With legal capacity, everything is somewhat different:

1. Until the age of fourteen, a citizen has no legal capacity at all.
2. From the day of age 14, a citizen receives limited legal capacity.
3. A person becomes fully capable on the day he reaches adulthood, or on the day he becomes emancipated.
4. Legal capacity may be limited by a court on the grounds established in Russian legislation.
5. A citizen can be completely deprived of legal capacity, but only on the basis of a court decision that has entered into force.

If a person has limited legal capacity or is completely deprived of it, he cannot make legally significant transactions, enter into any legal relations, or independently apply to court or other government bodies. In this case, a guardian or trustee acts on his behalf - a person appointed by the state, represented by local government bodies, who is obliged to take care of the incapacitated citizen.

In some cases, incompetent citizens are necessarily placed in specialized medical institutions, for example, in closed psychiatric clinics, since they pose a threat to the health or life of third parties. In such situations, an individual cannot be appointed as a guardian, so mentally ill people are transferred to the guardianship of the administration of the institution in which they are placed for treatment.

Article 148.1. Rights and obligations of a child's guardian or trustee

1. The rights and obligations of a child’s guardian or trustee arise in accordance with the Federal Law “On Guardianship and Trusteeship”.

2. Unless otherwise established by federal law, the child’s parents or persons replacing them lose their rights and obligations to represent and protect the rights and legitimate interests of the child from the moment the rights and obligations of the guardian or trustee arise.

3. Any actions (inaction) to exercise guardianship or trusteeship by a guardian or trustee of a child may be appealed by the parents or other relatives or adoptive parents of the child to the guardianship and trusteeship authority.

The guardianship and trusteeship authority has the right to oblige the guardian or trustee to eliminate violations of the rights and legitimate interests of the child or his parents or other relatives or adoptive parents. If the guardian or trustee does not obey the decision of the guardianship and trusteeship authority, the parents or other relatives or adoptive parents of the child have the right to apply to the court with a demand to protect the rights and legitimate interests of the child and (or) their rights and legitimate interests. The court resolves the dispute based on the interests of the child and taking into account his opinion. Failure to comply with a court decision is grounds for removing a guardian or trustee from performing their duties.

4. A guardian or trustee has the right to demand, on the basis of a court decision, the return of a child under guardianship or trusteeship from any persons holding the child without legal grounds, including from parents or other relatives or adoptive parents of the child.

5. A guardian or trustee does not have the right to prevent a child from communicating with his parents and other relatives, unless such communication is not in the interests of the child.

6. A guardian or trustee of a child has the right and obligation to raise a child under their guardianship or trusteeship, to take care of the health, physical, mental, spiritual and moral development of the child.

A guardian or trustee has the right to independently determine the ways of raising a child under guardianship or trusteeship, taking into account the opinion of the child and the recommendations of the guardianship and trusteeship body, as well as in compliance with the requirements provided for in paragraph 1 of Article 65 of this Code.

The guardian or trustee has the right to choose an educational organization, the form of education the child receives and the form of his education, taking into account the opinion of the child before he receives basic general education and is obliged to ensure that the child receives general education.

7. The property rights and obligations of a guardian or trustee are determined by civil legislation, as well as the Federal Law “On Guardianship and Trusteeship”.

8. Supervision over the activities of guardians or trustees of minor citizens is carried out in accordance with the Federal Law “On Guardianship and Trusteeship”.

Persons for whom guardianship and trusteeship are assigned

The appointment of guardianship under current legislation is carried out under the circumstances and in the event that:

• a minor child was left without parents;
• a person recognized as partially or completely incompetent.

The establishment of guardianship is carried out both by special bodies and by court decision, based on a submission from the authorities appointing guardianship. As a practice, it is assigned to the main place where the ward or the caregiver himself lives.

When is guardianship established over a minor child?

The current legislation clearly establishes a list of situations in the event of which guardianship may be assigned to a child under eighteen years of age.

These are:

• Death of parents;
• Voluntary refusal of parents to fulfill their parental responsibilities towards the child;
• By court order, the parents were deprived of parental rights;
• Recognition of parents as incompetent by court decision.

In a situation where the parents are divorced and the child lives with his mother, the new husband can legally obtain guardianship. However, such a right is granted only if the biological father has refused parental responsibilities or has been deprived of parental rights.

If a married couple had a marriage contract, then it does not apply to the upbringing and residence of the child.

This agreement controls only the property nuances of cohabitation.

Who has the right to become a child's guardian? His responsibilities

There are very strict rules for guardians!

There are strict requirements for a child's guardian. A person who wishes to become a guardian of a minor child must be an adult and legally capable. The moral character of the applicant, his personal and moral qualities must be checked, since the guardian is responsible for the upbringing of the ward and sets an example for him. The following persons cannot become guardians:

1. People deprived of parental rights. Guardianship authorities will definitely check all documents of future guardians. If it is discovered that they have already been terminated or have limited parental rights, they will not be appointed as guardians.
2. Convicted people. There are nuances here. The length of the criminal record and the severity of the crime will be considered, but most often convicted people are denied the right of guardianship, especially if the crime was committed against the health or life of a person.
3. People suffering from alcoholism or drug addiction. Most often, such people are recognized as partially incompetent, and guardianship authorities will not entrust children to them. It is very important that the authorities promptly identify such tendencies in the future guardian.
4. People with serious chronic diseases. Some serious illnesses do not allow caring for wards, so guardianship may be denied.
5. Completely or partially incapacitated people. Most often, such people themselves need guardians. If a married couple wishes to become guardians, but one of the spouses is incapacitated, guardianship will be denied.
6. People who were once guardians and were deprived of these rights. As a rule, second chances are not given. If a person has already assumed the duties of a guardian, but was deprived of them for improper performance, most likely the court will deny him the right of guardianship next time. The same applies to people who have ever adopted a child, but are deprived of this right.
7. People without permanent residence. The child will not be entrusted to people who do not have living space and are not registered anywhere. It is very important to create proper living conditions for the child.

The priority of custody of the child is given to his relatives: grandparents, uncles, aunts, cousins.

The guardian is obliged to protect the rights of the child, represent his interests, provide the necessary care, take care of his health, moral and spiritual development, monitor his academic success, help in every possible way and provide optimal conditions for his spiritual growth.

Statistics on guardianship of minors in the Russian Federation

In Russia, guardianship is the most common form of family arrangement. At the end of 2010, there were 430,604 children in Russia, of whom:

• citizens caring for children of strangers - 102,981 people.
• voluntarily placed under the guardianship of parents - 36,148 people.

At the end of 2009, there were children being raised in families:

• under kinship care - 343,342 children.
• under guardianship by strangers - 96687.

For different types of guardianship:

• on a free form of guardianship - 313908.
• in foster families - 68037.
• patronage - 2424.
• other types of paid guardianship - 15167.
• voluntarily transferred by parents - 40493.

Who will be the child's guardian after a divorce?

Upon divorce, parents must decide who will be responsible for the child. By decision of the former spouses or the court, the following may become a guardian:

• father;
• mother;
• both parents (joint).

In case of divorce and distribution of children, each of the former spouses may receive custody rights for a specific child. However, the parent may not always be allowed to see the baby. In Art. 35 of the Civil Code of the Russian Federation and Art. 146 of the RF IC establishes that a guardian must be recognized as a legally competent citizen over 18 years of age, whose biography does not contain a number of the following circumstances:

• deprivation of parental rights;
• having a criminal record that was acquired as a result of the intentional commission of a crime, the purpose of which is to cause harm to the life or health of a person;
• recognition of patients suffering from alcoholism or drug addiction;
• removal from the duties of a guardian;
• restriction of parental rights by court decision;
• deprivation of the status of “adoptive parent” through one’s own fault.

Also, a parent will not be able to become a guardian if they have diseases, the list of which is determined by Decree of the Government of the Russian Federation No. 117 of 2013:

• tuberculosis in persons from groups 1 and 2 of dispensary observation;
• substance abuse in addition to drug addiction and alcoholism, which were noted earlier;
• malignant tumors of stages 3 and 4 (neoplastic tumors of stages 1 and 2 before treatment);
• illnesses and injuries that caused the assignment of 1st group of disability;
• mental disorders;
• infectious diseases until completion of dispensary observation.

When appointing a guardian, the characteristics specified in paragraph 2 of Art. 146 RF IC:

• moral and personal qualities of a person who wants to be responsible for a child;
• the ability of the guardian to fulfill his duties, that is, to positively influence the development of the baby;
• relationship between parent and child.

IMPORTANT
In addition, when establishing custody in a divorce, it is also necessary to take into account the opinion of the child himself, who has reached the age of 10 (Article 57 of the RF IC).

Duties and responsibilities of a guardian

From the moment a guardianship order is made, the substitute parent receives all the rights and responsibilities of the legal representative of the ward. From now on, the guardian is obliged:

• support the ward and provide him with everything necessary in accordance with the state of health of the ward and his age;
• provide the pupil with medical care - timely and in full;
• protect the property and civil rights of the pupil;
• represent his interests in all judicial and government bodies, as well as in any other authorities;
• provide the minor with the opportunity to study.

Monitoring the fulfillment of the guardianship duties of the substitute parent is carried out by specialists of the Public Educational Institution. To carry out control, they visit the residential premises where the foster family lives:

1. Within the first 30 days from the date of appointment of guardianship.
2. Then during the first year - once every three months.
3. Then - once within six months until the end of guardianship.

What does the guardianship service check in an apartment during a divorce?

One of the duties of the guardianship authorities, when appointing a person responsible for the baby upon divorce, is to inspect the premises in which the child will live (clause 2 of article 24 of Federal Law No. 48-FZ of 2008). The apartment where a minor citizen with a guardian will stay must meet a number of requirements:

• Conditional order is maintained in the home. That is, there should be no garbage, unwashed dishes or a room that is chronically not cleaned.
• A separate sleeping place is provided for the child.
• The refrigerator contains food products in accordance with the physiological needs of the baby.
• A minor citizen is provided with seasonal clothing taking into account age and size.
• The student is allocated a separate place for studying (for example, the kitchen table cannot be considered suitable for preparing homework).
• The house remains safe. That is, the presence of potentially dangerous items in the public domain is checked, be it knives, chemicals, or medicines.

Based on the results of the inspection, an act is drawn up in accordance with Order of the Ministry of Education and Science of the Russian Federation No. 334 of 2009, which indicates the following information:

• Title of the document;
• Date of preparation;
• information about the parents of the minor offspring and about the child himself, specifying the details of the birth certificate or child’s passport;
• participation of mother and father in the life of the baby;
• information about the child’s condition: health, adaptation in society, academic success, appearance, upbringing;
• family environment and social connections;
• living conditions with a detailed description of each item from the list above;
• family income data;
• information about the child’s property;
• conditions that pose a danger to a minor child;
• conclusions and signatures of specialists.

After registering guardianship of a child, employees of the authorized body conduct scheduled inspections of the family’s place of residence (RF Government Decree No. 423 of 2009):

• within a month from the date of appointment of the person responsible for the baby - 1 time;
• within a year from the date of registration of guardianship - every quarter;
• after 12 months from the appointment of the responsible person - once every six months.

Attention
Employees of the guardianship and trusteeship authorities have the right to visit the apartment of the ward at any time if they identify a fact of non-compliance with the interests of a minor citizen. As a rule, a signal about the need to check living conditions comes from the child’s neighbors or teachers.

The necessary conditions

A citizen who wishes to be a guardian must be fully capable and of legal age.

The following citizens are not considered as candidates for guardians:

• emancipated persons aged 16 to 18 years;
• limited legal capacity;
• registered in a drug treatment or psychiatric dispensary;
• convicted for crimes against the person, life and health of citizens;
• deprived of parental rights;
• limited parental rights;
• citizens deprived of the right to be guardians;
• persons who do not have permanent registration and an apartment;
• citizens whose spouses have been declared legally incompetent;
• persons deprived of the right to be adoptive parents;
• citizens who have illnesses that prevent them from fulfilling their parental responsibilities.

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Since 2020, the legislation has been amended. Now information about persons who have been deprived of parental rights, limited in them, released from the duties of a guardian and deprived of the right to be adoptive parents, is transferred to the regional data bank.

If previously information was requested only in regions where the person was previously registered, now it will be more difficult to mislead specialists. The information is transferred to a common information system throughout the country.

Registration of guardianship

To register guardianship, it is necessary to prepare a number of documents and submit an application to the authorized body. The registration procedure varies depending on whether assistance is required for a child or an incapacitated person.

Government Decree No. 927 of 2010 establishes preferential conditions for the appointment of guardianship over relatives.

Persons living with incapacitated people for more than 10 years provide a minimum package of documents:

• passport;
• marriage certificate;
• medical report;
• documents confirming the presence of a family relationship.

Unrelated citizens and other relatives additionally provide information about income, autobiography, consent of relatives and a certificate of completion of training.

Preferential conditions are also provided for relatives of young children. However, the only relief is that there is no need to obtain a certificate of completion of specialized courses.

The remaining package of documents is submitted in full. But relatives (grandparents, brothers, sisters, uncles and aunts) have priority over strangers.

Ways to obtain child custody after divorce

In most cases, upon divorce, the identification of the person responsible for the child is carried out voluntarily. The basis for assigning such status to a parent in this case is an act of the guardianship and trusteeship authorities, which is stated in paragraph 6 of Art. 11 Federal Law No. 48 of 2008.

The need to go to court to establish guardianship of the offspring after divorce arises if interested parties (mother, father or other family member) are against the decision of the authorized bodies.

Types of child custody

Regardless of the type of guardianship, the procedure for registering guardianship is identical. The citizen must prepare documents and submit an application to the guardianship department. Guardianship is appointed by resolution of the local government body.

In the Russian Federation, guardianship and trusteeship are divided into the following types:

Depending on the age of the ward;

1. minors;
2. incompetent;
3. minor parents.

Separately, it is necessary to highlight the option when the parents of the newborn are not endowed with full legal capacity. In this case, the appointment of guardianship will also be required.

Guardianship of a minor is assigned if the parents are unable for good reason or do not want to fulfill parental responsibilities.

Valid reasons include:

• death;
• recognition as dead;
• recognition as missing;
• search;
• serving a sentence in prison;
• disease;
• deprivation of legal capacity.

If a parent does not want to fulfill responsibilities in relation to the child, then before appointing guardianship it is necessary:

• deprive him of parental rights;
• limit his parental rights.

Thus, the guardian of a minor, in fact, replaces his blood family.

Incompetent

From the moment a citizen reaches 18 years of age, he is automatically granted full legal capacity. That is, he can use civil rights and bear civil responsibilities in full.

In exceptional cases, the law provides for the possibility of depriving an adult of legal capacity. Among them:

• a mental disorder in which the patient cannot assess the consequences of his actions and threatens the life and health of other citizens;
• alcohol or drug abuse that has led to a mental disorder.

Legal capacity can be restored in court. In this case, guardianship is canceled.

Minor parents

If the mother and father of the newborn are under 18 years of age, then it is advisable to appoint guardianship over him. In accordance with Art. 62 of the RF IC, a minor mother and father can independently perform parental responsibilities if they have reached 16 years of age.

But if their age is under 16 years, then the appointment of a guardian is required who will protect the children's rights on an equal basis with his parents.

Guardianship is revoked when the mother or father reaches 16 years of age.

Depending on the status of the ward;

When assigning guardianship over a minor child, his status matters.

In 2020, the following options stand out:

• parent child;
• identified minor
• a child granted the status of being left without parental care.

Depending on the status, the procedure for registering guardianship and the list of documentation that must be submitted to the authorized body differ.

Temporary (at the request of parents)

Art. 13 Federal Law No. 48 of 2008 establishes the possibility of obtaining guardianship for children whose mother and father are temporarily unable to perform their duties.

Features of guardianship upon application:

• parental rights and responsibilities are retained in full;
• the resolution must contain a validity period;
• issued if there are compelling reasons (studying in another city, business trip, working on a rotational basis);
• the candidacy of the guardian is chosen by the parents;
• the consent of both mother and father is necessary;
• the child does not receive the status of being left without parental care;
• The guardian does not receive payments or benefits.

Preliminary

Art. 12 Federal Law No. 48 of 2008 establishes the possibility of registering guardianship over a minor who has just been identified. Identification means obtaining the status of a child left without parental care.

Within 30 days from the date of assignment of status, the child’s relatives or strangers can obtain guardianship on preferential terms. This option is necessary to avoid placing the minor in a shelter while preparing documentation for permanent guardianship. Peculiarities:

• is drawn up according to 3 documents (a statement from the guardian, an inspection report of living conditions and a civil passport);
• valid for 6 months (in exceptional cases, additionally extended for another 2 months);
• the guardian does not receive the right to dispose of the ward’s property; cannot be assigned on a reimbursable basis.

At the end of preliminary guardianship, permanent guardianship must be appointed.

Constant

Permanent guardianship is a form of family arrangement for a child deprived of parental care. It is valid until the student reaches 14 years of age. After which it automatically goes into guardianship. The guardian fulfills his duties until the pupil reaches adulthood.

Depending on the payment to the guardian;

Gratuitous

The law provides for the payment of benefits for the maintenance of a minor pupil.

The needs of the incapacitated ward must be met through his pension. The funds are transferred to the nominal account of the guardian. But these payments must be spent in the interests of the ward. The legal representative must report annually on their expenditure.

The report is submitted to the guardianship department by February 1 of each year.

Paid

Paid guardianship is appointed under an agreement between the citizen and the district guardianship department.

The terms of the contract provide for the payment of a monthly fee to the guardian.

For representatives of minors, the amount is established by regional legislation. For representatives of the incapacitated, the amount is set individually, but not more than 5% of the ward’s monthly income. The recipient is not accountable for spending the funds.

Depending on the number of subjects.

The legislation provides for the possibility of participation in family education of several entities:

• guardianship over several wards;
• guardianship of one ward by several guardians.

Multiple guardians

Art. 10 Federal Law No. 48 of 2008 provides for the possibility of appointing 2 or more guardians to one ward. This decision is made by the guardianship department in the interests of the incapacitated or minor ward.

Representatives can independently share powers in relation to the pupil or ask specialists from the guardianship department to do so. If guardianship is appointed on paid terms, the remuneration is divided between the representatives in any proportion (at their request) or transferred in full to one of them.

Several wards

One guardian can be a representative of 2 or more minors and incapacitated citizens. The legislator recommends the simultaneous transfer of no more than 8 children (including blood children) to a family.

The maximum number of incapacitated wards is not established by law.

Guardianship (trusteeship) of minors, types of guardianship (trusteeship)

Legal regulation of guardianship and trusteeship relations is carried out through the norms of the Civil Code (Articles 31 - 40), the Family Code (Articles 145 - 153.2), Federal Law of April 24, 2008 N 48-FZ “On Guardianship and Trusteeship” (hereinafter - Law on guardianship and trusteeship) and normative legal acts adopted in accordance with it.

In Russia, guardianship (trusteeship) is a complex institution of legislation

, the norms of which are historically dispersed in different acts. In accordance with Art. 31 of the Civil Code of the Russian Federation, guardianship (trusteeship) is established both over children and, if necessary, over adults. The difference between guardianship of children and guardianship of adults is that the former imposes on the guardian the additional responsibility of raising the child. Provisions corresponding to this obligation are contained in family law.

At one time G.F. Shershenevich defined guardianship as an “artificial family”, V.I. Sinai - as “a surrogate for parental care of children, their persons and property.” In modern legal literature, guardianship is written as one of the forms of “implementing state protection of the individual.”

By virtue of Art. 2 of the Law on Guardianship and Trusteeship, guardianship is a form of arrangement for minor citizens (minor citizens under the age of 14) and citizens recognized by the court as incompetent, in which citizens (guardians) appointed by the guardianship and trusteeship body are the legal representatives of the wards and act on their behalf and in all legally significant actions are in their interests. In turn, guardianship is a form of placement of minor citizens aged 14 to 18 years and citizens limited by the court in legal capacity, in which citizens (trustees) appointed by the guardianship and trusteeship authority are obliged to provide assistance to minor wards in the exercise of their rights and fulfill their duties, to protect minors wards from abuse by third parties, as well as give consent to adult wards to commit actions in accordance with Art. 30 Civil Code of the Russian Federation. That is, guardianship (trusteeship) is a form of placement for a child left without parental care

, which involves only individual provision of assistance, care and care to him by a certain individual (certain persons).

Being an individual form of arrangement, guardianship (trusteeship) is intended primarily to compensate for the missing legal capacity of the child under guardianship, as well as for his upbringing. Guardianship (trusteeship) is carried out by the guardian (trustee) free of charge or on the basis of consideration and consists in the performance by him (guardian (trustee)) of legal and (or) actual actions in the interests of the child. This form of placement for children is temporary.

In accordance with Art. 32 of the Civil Code of the Russian Federation, guardianship is established over minors (persons under the age of 14 years), and on the basis of Art. 33 of the Civil Code of the Russian Federation, guardianship is required for minors aged 14 to 18 years who are left without parental care.

The internal legal relationship of guardianship (trusteeship) involves a guardian (trustee) and a ward. A child to whom a guardian (trustee) is appointed has a special legal status in accordance with current legislation. There are the following grounds for appointing a guardian (trustee) for a child:

- lack of care on the part of parents or persons replacing them (Article 145 of the Family Code);

- the parent of the child has not reached the age of 16 years (Article 62 of the Family Code).

In § 1 of this chapter the concept of “a child left without parental care” has already been discussed. Fulfilling its obligation to place such a child, the guardianship and trusteeship authority most often chooses this form of placement for the child - guardianship (trusteeship). This circumstance is due, firstly, to the fact that most children have relatives who agree to take on the responsibilities of raising and protecting the rights and interests of the minor. Secondly, guardianship (trusteeship) as a temporary form of arrangement does not give rise to the consequences that adoption entails, which makes it easier for many citizens to make the decision to take a child into their family. In particular, the ward does not inherit from the guardian (unless, of course, there is another basis for inheritance, such as some degree of kinship). Thirdly, guardianship (trusteeship) under current Russian legislation does not require judicial determination and can be formalized much faster than adoption.

According to the Family Code, minor parents (parents under the age of 18) have the right to establish maternity and paternity in relation to their children (Article 62). However, the child’s unmarried minor parents do not have sufficient legal capacity in these legal relations. In accordance with paragraph 2 of Art. 62 of the RF IC, they have the right to independently exercise parental rights only when they reach the age of 16 years. Until this time, their child may be assigned a guardian.

Thus, a special case of establishing guardianship is provided for in paragraph 2 of Art. 62 RF IC situation. A child to whom a guardian is appointed is not left without parental care. The appointment of a guardian is not mandatory and is done at the discretion of the guardianship and trusteeship authority. The need to appoint a guardian is caused by the fact that the minor parent himself, not having sufficient legal capacity, is not able to represent the interests of his child. The guardian of a child of minor parents, as his legal representative, has the right to receive and spend funds due to the child, enter into transactions on his behalf, and participate in other relations, representing the child.

A feature of guardianship in this case is the joint upbringing of the child by the guardian and minor parents. Disagreements arising between them are resolved by the guardianship and trusteeship authority.

The procedure for establishing guardianship (trusteeship) over minors.

A guardian or trustee is appointed with his consent or upon his written application by the guardianship and trusteeship authority at the child’s place of residence. If there are circumstances worthy of attention, a guardian or trustee may be appointed by the guardianship and trusteeship authority at the place of residence of the guardian or trustee.

In order to obtain information about the identity of the future guardian or trustee, the guardianship and trusteeship authority has the right to request information about him from internal affairs bodies, civil registry authorities, medical and other organizations. The candidate for guardianship can provide such information himself.

The priority right to be guardians or trustees of a child is granted to grandparents and adult brothers and sisters of the child (Part 5 of Article 10 of the Law on Guardianship and Trusteeship).

The procedure for establishing guardianship or trusteeship is completed by the act of the guardianship and trusteeship authority on the appointment of a guardian or trustee. This act may indicate the duration of the powers of the guardian or trustee; for example, it may be stipulated that the guardian (trustee) is appointed for several months or years, or is appointed until the child completes his studies in an educational organization.

The act of the guardianship and trusteeship authority on the appointment of a guardian or trustee may be challenged by interested parties in court. Such interested parties may include other citizens who wished to take the child under guardianship or guardianship, including his relatives. The decision of the guardianship and trusteeship authority to refuse to satisfy the application for the appointment of a guardian or trustee may be challenged in court by the applicant.

Status of guardian (trustee) and ward of the child.

The legal status of a guardian is characterized primarily by special legal capacity. Not every person can be appointed as a guardian (trustee) of a minor. The requirements for the identity of the guardian (trustee) are established by the provisions of Art. 35 of the Civil Code of the Russian Federation and Art. 146 RF IC. In this regard, it should be noted that a guardian (trustee) has a special legal status. So, A.A. Eroshenko even proposed using such a legal concept as “guardianship.”

A child placed under guardianship (trusteeship) retains his property and personal non-property rights (Article 148 of the Family Code) in full. The main content of the legal relationship of guardianship (trusteeship) over children consists of the rights and responsibilities of guardians and trustees, which are close to parental rights and responsibilities.

The main responsibilities of a guardian include the following:

1. Duty to raise a child

(to take care of his mental, spiritual and moral development) is at the same time the right of the guardian, who can choose any methods for education. However, Art. 148.1 of the RF IC defines the limits of discretion of the guardian (trustee) in the exercise of the right to education:

firstly, the guardian (trustee) does not have the right, while raising a child, to cause harm to his physical and mental health, moral development, since in accordance with Art. 65 of the RF IC, methods of raising children must exclude neglectful, cruel, rude, degrading treatment, insult or exploitation of children;

secondly, when choosing methods of education, it is necessary to take into account the opinion of a child who has reached the age of 10 years (Article 57 of the Family Code). The child always has the right to be heard, therefore, both the guardian (trustee) and the employees of the guardianship and trusteeship authority are at least obliged to listen to him;

thirdly, the methods of raising a child must be chosen by the guardian (trustee), taking into account the recommendations of the guardianship and trusteeship authority. Such recommendations (advice) can be expressed both in written and oral form. However, the guardian (trustee) is not obliged to strictly follow them. Failure to comply with the recommendations of the guardianship and trusteeship authority regarding the upbringing of a child cannot serve, for example, as a basis for removing the guardian (trustee) from performing duties, unless he committed more serious violations.

2. The implementation of educational functions by a guardian (trustee), as a rule, is impossible without living together with the child. That is why Art. 36 of the Civil Code of the Russian Federation establishes the obligation of guardians (trustees) of minor citizens to live with their wards

. However, in cases where the child has almost reached adulthood and is sufficiently independent, paragraph 2 of Art. 36 of the Civil Code of the Russian Federation allows for separate residence of a guardian and a ward who has reached the age of 16 years. This requires permission from the guardianship and trusteeship authority, which in turn can be given provided that separation does not adversely affect the education and protection of the rights and interests of the ward. The criteria for issuing permission to separate the child and the caregiver are not established by law. Most often, such permission is issued when a minor is enrolled in an educational organization located in another locality.

In cases where a guardian or custodian allows a child under his ward to live separately for a long time without good reason, such a fact is a violation on his part and may serve as a basis for removing the guardian (trustee) from performing his duties. Clause 3 of Art. 39 of the Civil Code of the Russian Federation regards this as leaving the ward without supervision and necessary assistance and allows the guardianship and trusteeship authority to “take the necessary measures to bring the guilty citizen to responsibility established by law.”

3. The guardian (trustee) is obliged to ensure that the child receives basic general education

(Clause 4 of Article 43 of the Constitution of the Russian Federation; Article 148.1 of the SK). In accordance with the norms of the Family Code, the guardian (trustee) has the right to choose the educational organization where the child will study, as well as the form of education: family education, self-education. As noted, the opinion of a child who has reached the age of 10 years must be taken into account.

4. Duty to take care of the child’s health and physical development

also refers to the duties of a guardian (trustee). The legislation does not provide for what exactly a guardian should do when fulfilling this duty, however, the latter will be held responsible for deterioration in health caused by the fault of the guardian (trustee).

Of course, the child’s guardian (trustee) is obliged to provide him with food and, if necessary, medical care. In fulfilling this duty, the guardian has the right in accordance with paragraph 1 of Art. 37 of the Civil Code of the Russian Federation to make the necessary expenses from the amounts due to the child as his income. Benefits paid for the maintenance of a child, his pension or other income may be spent by the guardian exclusively for the specified purposes.

5. The guardian is obliged to provide the child with the opportunity to communicate with relatives.

The procedure for such communication is regulated by the Family Code, in accordance with Art. 55 of which the child has the right to communicate with both parents, grandparents, brothers, sisters and other relatives. This right must be exercised, as a rule, in all cases, including if the child is in an extreme situation (clause 2 of Article 55 of the Family Code), and in the case where the child and parent live in different states.

Thus, the guardian (trustee) of the child is obliged to provide the child’s parent living separately with the opportunity to meet with the child and participate in his upbringing. Refusal to such meetings is legal only if parental rights are deprived or parental rights are limited.

The five listed responsibilities of a guardian (trustee) are implemented, as a rule, through actual actions. The following obligation requires the performance of legal actions: the guardian (trustee) is obliged to represent and protect the rights and interests of the child

.

One of the important elements of the representative relationship is the possibility of making transactions on behalf of the represented person. As is known, a guardian makes transactions on behalf of minor citizens (with the exception of those transactions that, in accordance with paragraph 2 of Article 28 of the Civil Code of the Russian Federation, minors aged six to 14 years have the right to make independently). The trustee only gives consent to the ward to carry out transactions, except for those transactions that are listed in clause 2 of Art. 26 Civil Code of the Russian Federation.

The powers of the guardian and trustee do not extend to transactions with the property of the ward, which, in accordance with Art. 38 of the Civil Code of the Russian Federation was transferred to trust management.

According to Art. 37 of the Civil Code of the Russian Federation, in order for guardians (trustees) to perform these actions, in some cases, prior permission from the guardianship and trusteeship authority is required. The law does not prevent the guardianship and trusteeship authorities from including a number of conditions in this preliminary permission, which is what they use in the vast majority of cases in practice.

When representing and protecting the rights and interests of wards, guardians (trustees) are obliged to perform other legal actions:

- guardians of minors have the right and are obliged to apply for the limitation of the legal capacity of minors (clause 4 of article 26 of the Civil Code);

- guardians of minors can give consent to declare minors fully capable (emancipation) (Article 27 of the Civil Code);

- guardians and trustees, caring for the interests of their wards, can challenge transactions made by children;

- in accordance with paragraph 2 of Art. 172 of the Civil Code of the Russian Federation, a guardian of a minor child has the right to demand recognition of a valid transaction made by a minor if it was made for the benefit of the minor;

- in accordance with Art. 49 of the RF IC, guardians (trustees) of a child have the right to file an application to establish paternity in court. After the court decision has entered into legal force, the guardian (trustee) has the right to submit an application to the registry office for state registration of paternity establishment (Article 54 of the Federal Law “On Civil Status Acts”).

Other federal laws provide for a whole series of legal actions that guardians (trustees) of children perform in fulfilling their responsibility to protect their rights and interests. Yes, Art. 48 of the Code of Criminal Procedure of the Russian Federation provides for the mandatory participation of a guardian of a minor, suspected or accused in a criminal case.

At the same time, the guardian (trustee) does not have the full rights and responsibilities in relation to the child that are granted to the parents. Thus, he does not have the right, at his discretion, to change the name or place of residence of a minor.

Moreover, by virtue of Art. 15 of the Law on Guardianship and Trusteeship, the guardianship and trusteeship authority in the act of appointing a guardian or trustee or in the agreement on the implementation of guardianship or trusteeship may indicate certain actions that the guardian or trustee does not have the right to perform, including prohibiting the guardian or trustee from changing the place of residence of the ward . These orders can be given only in cases where the interests of the child so require. In order to take into account the individual characteristics of the child, the guardianship and trusteeship authority may also establish mandatory requirements for the exercise of the rights and performance of the duties of a guardian or trustee, including such requirements that determine the specific conditions of upbringing (for example, the guardian may be ordered to ensure regular medical examination of the child or his visit to a sports school).

The rights and obligations of guardians (trustees) form the basis of their legal status. However, the specificity of the situation of these persons is also manifested in the peculiarities of their civil liability for causing harm to their wards. For harm caused to a minor under the age of 14, his guardian is responsible unless he proves that the harm was not his fault. The guardian's obligation to compensate for harm caused to minors does not end when the minor reaches the age of majority or receives property sufficient to compensate for the harm. It should be noted that, under certain circumstances, the law allows compensation for such harm at the expense of the organizations in which the child is located or is studying. In addition, the possibility of compensation for harm at the expense of the causer himself, who has become fully capable, cannot be excluded. These provisions are contained in Art. 1073 of the Civil Code of the Russian Federation.

If the harm is caused by a person aged 14 to 18 years, then, first of all, compensation for harm is made at the expense of the personal property of the causer. And only in the absence or insufficiency of such property can responsibility be placed on the child’s guardian (according to paragraph 2 of Article 1074 of the Civil Code “in the case where a minor aged fourteen to eighteen years does not have income or other property sufficient to compensate for harm, harm must be compensated in full or in the missing part by... the trustee”, unless he proves that the damage did not arise through his fault). The trustee’s obligation to compensate for damage caused by a minor terminates when the person causing the harm reaches the age of majority, or in cases where, before reaching the age of majority, he acquired income or other property sufficient to compensate for the damage, or when he acquired legal capacity before reaching the age of majority (Article 1074 of the Civil Code) .

The guilt of the guardian or trustee is assumed, and he is obliged to prove its absence. One of the circumstances excluding the guilt of the guardian (trustee) may be that the child’s behavior, which resulted in harm, was a consequence of improper performance of parental responsibilities by the parent deprived of parental rights. According to Art. 1075 of the Civil Code of the Russian Federation, the court may hold such a parent liable for harm caused by his minor child within three years after deprivation of parental rights.

Grounds for termination of guardianship and trusteeship

can be divided into three groups:

1) cases of “automatic” termination, which include: the minor ward reaching the appropriate age; marriage of a minor ward; emancipation; the minor parent of the ward child reaches the age of 18 years, as well as his emancipation or marriage before the age of 18; death of a guardian or trustee or ward; expiration of the act of appointment of a guardian or trustee;

2) release of the guardian (trustee) from performing duties (clauses 1 and 2 of Article 39 of the Civil Code);

3) removal of the guardian (trustee) from performing duties (clause 3 of Article 39 of the Civil Code).

Adoptive family

is a type of guardianship (trusteeship) over a child (children), which is carried out under a foster family agreement concluded between the guardianship and trusteeship authority and the foster parents (or foster parent), for the period specified in the agreement.

Currently, the legal basis for creating a foster family is the norms of Chapter. 21 of the RF IC, as well as Resolution of the Government of the Russian Federation of May 18, 2009 N 423 (as amended on February 10, 2014) “On certain issues of guardianship and trusteeship in relation to minor citizens”, which approved the Rules for creating a foster family and exercising control over the living conditions and upbringing of the child (children) in a foster family.

An agreement on creating a foster family is a type of agreement in favor of a third party. The agreement is concluded by the guardianship and trusteeship authority, on the one hand, and the individual (persons), on the other, and the rights under the agreement (the right to receive education, care, representation) are acquired by a third party - a child left without parental care. At the same time, due to the special purpose of this agreement (creation of “quasi-family” relations), the impossibility of fulfilling an obligation to a third party does not give the creditor the opportunity to exercise the rights granted under the agreement (clause 4 of Article 430 of the Civil Code).

In accordance with Art. 10 of the Law on Guardianship and Trusteeship, the guardianship and trusteeship authority, based on the interests of the person who needs to establish guardianship or trusteeship over him, may appoint several guardians or trustees (co-guardians) for him. One of the features of the subject composition of legal relations that develop when creating a foster family is that co-guardians can only be spouses - persons in a registered marriage.

The requirements for the identity of the adoptive parent (adoptive parents) do not differ from the requirements imposed by law for the identity of guardians (trustees).

Children left without parental care are sent to a foster family. A child of a minor parent (Article 62 of the Family Code) is not transferred to a foster family, unless there are grounds for removing the child from the care of such a minor parent.

A foster family arises on the basis of an agreement providing for the provision of remuneration to guardians (trustees) for the performance of their duties. According to the general rule enshrined in paragraph 1 of Art. 36 of the Civil Code of the Russian Federation, duties of guardianship and trusteeship are performed free of charge. A foster family is one of those cases provided for by law when these duties are performed for a fee.

The right of the adoptive parent to receive remuneration for services should be distinguished from the right to compensation for expenses incurred in connection with the performance of his duties. The law provides for the provision of funds to foster parents (as well as other guardians) for the maintenance of the child, however, by virtue of Art. 31 of the Law on Guardianship and Trusteeship, the amount of benefits and other payments intended for accommodation, food and other needs of a ward child belongs to the child himself.

In the legal literature, the issue of the sectoral nature of the foster family agreement has not been resolved unambiguously for a long time or has not been discussed at all. Until recently, there was no answer to this question in legislation, which gave rise to serious problems in practice. Thus, there have been cases of early termination of foster family relations, as a result of which foster parents were presented with demands for the return of material benefits received by them under the contract, and on their part, on the contrary, demands were made for the replacement of difficult foster children with others (the basis for these demands was the idea of labor nature of the foster family agreement).

This problem was resolved in science and in legislation by 2008. By virtue of the current version of Art. 152 of the RF IC, to the extent not regulated by this Code, the rules of civil law on the paid provision of services are applied to relations arising from an agreement on a foster family, insofar as this does not contradict the essence of such relations. The foster family agreement itself, like other agreements on paid guardianship (trusteeship), is a civil law agreement.

The subject of the foster family agreement is actual and legal actions for the upbringing and protection of the rights and interests of the child (children). The legal relationship arising from the creation of a foster family is of a personal trust, fiduciary nature, and therefore the foster parent is required to personally fulfill obligations under the contract. In addition, this agreement can be terminated due to circumstances such as illness, change in the family or property status of the adoptive parent, lack of mutual understanding with the child, conflictual relationships between children, return of the child to the parents or adoption of the child, etc. (Clause 2 of Article 153.2 of the SK). Of course, in the event of early termination of the contract, adoptive parents are not compensated for the associated losses. Moreover, as in other civil law contracts, the foster family contract allows for compensation for losses caused by the termination of this contract (if the basis for termination of the foster family contract was a significant violation of the contract by one of the parties through her fault - clause 3 of Art. 153.2 SK; clause 5 of article 453 of the Civil Code).

There are no differences in the content of legal relations between adoptive parents and children transferred to them, as well as legal relations regarding guardianship (trusteeship) of minors (except for the fact that adoptive parents are due remuneration).

Being a type of guardianship (guardianship), foster care is terminated on the same grounds as guardianship. The difference between them is very formal and comes down to the different names of these legal structures of the forms of placement of children left without parental care.

Since a foster family is a type of guardianship (trusteeship), the rules on guardianship and trusteeship are subject to application to the relationship between foster parents and the child in their care.

Foster family

- another type of guardianship (trusteeship) over children, which, like a foster family, is paid guardianship carried out under a contract.

By virtue of Art. 14 of the Law on Guardianship and Trusteeship, agreements on foster family (on patronage, on foster care) can be concluded only in cases provided for by the laws of the constituent entities of the Russian Federation. Such laws have been adopted in a number of regions, for example, in the Moscow and Ryazan regions, Krasnodar Territory, and the Republic of Adygea. From the point of view of internal relations of guardianship and trusteeship (the relationship between the child under guardianship and the individual accepting the child into the family), patronage agreements are no different from agreements on foster family. The differences between these types of guardianship (trusteeship) mainly come down to the volume and nature of state support for the family of the guardian (trustee).

Source: Textbook "FAMILY LAW" edited by P.V. KRASHENINNIKOVA. Authors: Gongalo B.M., Krasheninnikov P.V., Mikheeva L.Yu., Ruzakova O.A.

Who can act as a guardian or trustee?

Upon an application regulated by law, which must be submitted in writing, guardianship may be exercised by:

• persons who have actual legal capacity and be capable;
• citizens who have family ties with the ward.

The law also allows for the assignment of more than one guardian to a ward, as well as trustees.

When the interests and goals of the guardian contradict or threaten the interests of the person in respect of whom guardianship is appointed or may harm him, then in this case the establishment of guardianship is excluded. A person who has been deprived of parental rights cannot claim to support a child as a guardian.

Rights and responsibilities of a guardian and trustee

The main responsibilities include, of course, care and attention, full care and timely treatment of the entrusted ward, as well as creating comfortable living and living conditions for him. If the child is still young, then take part directly in the education and engage in his upbringing. A guardian, as well as a trustee, can and should represent the interests of their ward in authorities, services and the court. On his behalf, the guardian is allowed to conduct various types of transactions that must not contradict the law and will not cause significant harm to the person under guardianship.

Can a guardian officially work?

The law does not prohibit a guardian from working. Regardless of whether such a citizen is employed or not, he receives the payments established by the relevant regulations.

Requirements for candidates

In order to become a guardian or trustee, you must meet certain requirements, which in Russia are officially enshrined in the current regulatory framework. As a rule, mandatory compliance with the following restrictions is provided:

1. presence of Russian citizenship, and in addition permanent registration on the territory of Russia;
2. Also, when assessing the situation, up to what age guardianship is established, we must not forget that one can become a guardian only from the age of 18;
3. it should be understood that in order to take a child into care there will need to be an age difference of at least 16 years;
4. this provides for a stable financial situation, and in addition the presence of a high income;
5. it is required to own property (housing) where the citizen taken into care will subsequently be registered;
6. the candidate must also prepare all documents in advance, including a certificate of no criminal record;
7. Along with this, it may additionally be necessary to have appropriate permission from the guardianship authorities and the board of trustees.

The procedure for obtaining this status is complicated for a reason, since previously there have been situations where adopted children were subjected to unlawful actions on the part of their guardians. To eliminate such a situation, the process was significantly complicated and supplemented with appropriate requirements and restrictions.

Important. A sample application for guardianship can be found freely available on the Internet, since it provides for a strict procedure for filling out the form by a candidate for guardianship.

Procedure and nuances of design

In order to become an official guardian of a young representative of the Russian Federation, an established procedure is provided, and in addition, the procedure is associated with a number of nuances. In practice, the algorithm looks like this:

1. First of all, you have to choose a child for subsequent adoption and upbringing.
2. Next, you will have to take appropriate courses, where your knowledge of the rules of education will subsequently be tested.
3. Subsequently, the necessary documents are prepared, after which an application is submitted to the bodies of the board of trustees.
4. Once the application is approved, the procedure for reviewing and registering guardianship of the wards begins.
5. The next step is to submit a statement of claim to the court upon granting permission from the appropriate authority.
6. Subsequently, you will have to wait for the court ruling to come into force, after which you will have to issue the appropriate adoption document at the registry office.
7. Next, the minor is registered at the place of residence, and in addition a report is submitted to the guardianship authority.

Be sure to read it! What is a testamentary disposition for a bank deposit?

In accordance with current legislation, regular reporting to the relevant authorities is also provided for, which will assess the correctness of upbringing and compliance with the legal rights of the child by his adoptive parents.

Where is guardianship formalized?

The candidate for guardianship submits a package of documents to the guardianship and trusteeship authorities. After studying the documents, the living conditions in which the ward will be located are checked within 7 days. The most important requirement for a child is the presence of a separate sleeping place, as well as a place for activities. A child with a disability must be provided with a separate room.

15 days are given to make a decision on establishing guardianship.

The candidate for guardianship receives a conclusion on permission or refusal of guardianship. If the social service refuses, its conclusion can be appealed in court.

The resolution is provided:

• to school;
• hospital, clinic;
• law enforcement agencies (if necessary);
• while traveling.

Guardianship and Trusteeship Service

Who should be responsible for placing incapacitated citizens under the guardianship of individuals or legal entities? According to paragraph 2 of Art. 121 of the RF IC, these functions are assigned to district or city departments of guardianship and trusteeship (DTC). These bodies are obliged:

1. Find and then keep records of all citizens in need of guardianship or care, regardless of their age.
2. Select guardian candidates for specific wards and provide them with training.
3. Carry out the entire procedure for appointing and registering guardianship or trusteeship.
4. Check the living conditions of potential guardians before appointing guardianship.
5. Protect the rights of incapacitated and partially capable citizens.
6. Monitor guardianship families to ensure that substitute parents fulfill their duties.
7. Control the use, as well as the safety of the property of the wards, including allowing or prohibiting any property transactions with the property of the ward.
8. In case of gross violations of guardianship duties, or abuse by the substitute parent of their guardianship rights, remove them from the duties of raising a minor by terminating the guardianship agreement.

The procedure for establishing guardianship

The procedure for establishing guardianship and trusteeship over minors and adults with incapacitated people requires compliance with certain stages:

1. Get free training. This is training for guardian candidates which results in the candidate receiving a certificate of completion.

   

2. Prepare a list of documents:
   Russian passport,
3. SNILS,
4. statement,
5. salary certificate for the last year,
6. documents for housing (ownership rights),
7. certificate from the police information department,
8. certificate from a medical institution about the candidate’s health,
9. marriage registration document, if any,
10. consent of children over 10 years of age who will live in the same area as the ward,
11. certificate of training (see point 1),
12. autobiography.
13. Submit the collected package of documents to the guardianship authority at your place of residence in person or through the official website, or to the MFC.
14. Representatives from the guardianship body will visit the house to examine the living conditions, as a result of which an inspection report will be issued.
15. The above authorities study all submitted documents, the identity of the guardian, living conditions on the basis of the act and make a decision (positive or negative). In case of a positive decision, the citizen is registered as wishing to be a guardian. This conclusion is valid for two years.
16. If there is a potential ward of a child or an adult, then the guardianship authority again needs to write an application, but for a specific ward. They will present their positive decision in the form of an act of appointment as a guardian.

Documents required for registration of guardianship and trusteeship

The list of documents required to establish guardianship or trusteeship of a minor child includes:

1. Written statement from the future guardian (trustee). If several guardians receive permission to guard a minor child, all applications must be submitted simultaneously.
2. Identity document of the future guardian (trustee).
3. A certificate from the guardian’s place of employment confirming his position and income for the last 12 months (a certificate from a pension fund or a certificate of income of one of the spouses can be presented).
4. Extract from the place of registration and residence of the future guardian. It is also allowed to provide documents confirming the right of ownership of residential premises (certificate of registration of ownership, purchase and sale agreement, etc.).
5. A certificate confirming that the future guardian does not have a criminal record or is under investigation.
6. A medical report on the health status of the future guardian, issued on a special form in the appropriate manner. The document must bear the official seal and signature of the head of the medical institution who conducted the examination. The validity period of such a certificate is 6 months. The document is issued by a state medical institution free of charge.
7. A copy of the marriage certificate (if available).
8. Written consent of all family members living with the future guardian. The opinion of minor children over 10 years of age must be taken into account.
9. A document (certificate) confirming compliance with the requirements of sanitary and technical standards of the residential premises where the future guardian lives and the ward will live.
10. Autobiography of a person who has expressed a desire to take custody of a minor child.
11. Documents confirming that the guardian has completed appropriate training on the upbringing and maintenance of a minor child left without parental care (training is not required for persons who have previously been guardians or adoptive parents and have not been suspended from performing relevant duties).

How to obtain guardianship or guardianship over an adult?

To obtain an opinion on the possibility of being a guardian or trustee, you will need:

• These documents do not need to be submitted to close relatives if, 10 years before the date of filing the application, they constantly lived together with incapacitated (or partially capable) citizens in respect of whom they want to establish guardianship (or trusteeship).

How to arrange guardianship or trusteeship on a reimbursable basis?

Guardianship and trusteeship are usually provided free of charge. If payment is made from income from the property of the ward, then it is compensated. However, it must be taken into account that the maximum amount of remuneration paid to the guardian cannot exceed 5% of the income of the property for the reporting period.

If you want to receive remuneration for the services of a guardian, you need to enter into an appropriate agreement with the guardianship and trusteeship authority at the place of residence of the ward.

If the place of residence of the ward changes, the contract is terminated and a new one is concluded, but with the guardianship and trusteeship authority at the new place of residence.

How often are checks carried out after establishing guardianship or trusteeship?

After establishing guardianship (or trusteeship), the guardianship and trusteeship authorities conduct mandatory scheduled inspections of the living conditions of the ward.

If the ward lives with you, checks are carried out:

• within the first month after the decision to appoint a guardian is made - 1 time;
• during the first year after establishing guardianship - once every 3 months;
• over the next years - once every 6 months.

For guardians (or trustees) who are close relatives of their wards, the rules for conducting routine inspections of living conditions are relaxed. Checks are carried out:

• during the first year after the decision to appoint a guardian is made - 1 time;
• over subsequent years - once every 3 years.

If the ward is placed under the supervision of a medical organization or social service organization, checks are carried out:

• within the first month after the decision is made to place the ward under supervision - 1 time;
• during the first year and subsequent years - once every 6 months.

If complaints are received about non-fulfillment or improper fulfillment of their duties by a guardian or trustee, the guardianship and trusteeship authority may conduct an unscheduled inspection.

Where to contact

The Civil Code (Article 35) determines that the guardianship and trusteeship body, being a local government body, establishes guardianship.

After it becomes known that the child needs guardianship, the guardianship authorities must appoint a guardian within 1 month. First of all, close relatives of the ward are considered, incl. living with him. If there are none, or they voluntarily refused, the guardianship authorities turn to lists of guardians who want to become guardians for those in need.

As a general rule, care is arranged at the place of residence of the ward, but if the child already lives with a potential guardian, then, accordingly, guardianship will be at the place of residence of the guardian.

When a suitable candidate is selected, a decision is made to appoint a guardian or trustee. After this decision, i.e. From the moment of appointment, the parties have rights and obligations. You cannot appoint a person as a trustee or guardian without his consent. He must independently and voluntarily submit an application to the guardianship department. Voluntary relinquishment of guardianship does not carry with it civil consequences, but must be due to valid reasons.

It is possible, if necessary, to establish preliminary (temporary) guardianship for 1 month while a suitable person is being selected or documents are being drawn up for the same temporary candidate, but on a permanent basis. If guardianship is not established within 1 month, then the guardianship and trusteeship authorities themselves become temporarily responsible.

After the official appointment, a guardian's certificate is drawn up and issued, as well as documents relating to the ward. If necessary, the entire background of the ward child or adult, as well as the rights and obligations of the parties, are explained. In addition to care, the child’s guardian must provide upbringing and proper education.

The guardianship authorities will periodically monitor how things are going in the guardian family, whether the children’s rights are being violated, whether they are being infringed upon in some way, whether their life and health are being encroached upon, and whether property is being used illegally. If violations are discovered, the guardian may be brought to administrative or criminal liability.