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

Types of guardianship and trusteeship can be divided into several classifications:

1. Classification by subject.
2. Classification by number of subjects (multiple).
3. Basic classification (forms of guardianship and trusteeship). According to the Federal Law “On Guardianship and Trusteeship”, guardianship is established:
   in the general order (paid and gratuitous),
4. preliminary (in other words, temporary).

When are guardians and trustees needed?

Russian legislation provides that every citizen has two important legal characteristics:

• Legal capacity is the ability to have rights and obligations provided for by law.
• Legal capacity is the ability to exercise these rights, create responsibilities, and act independently in legal relations.

Legal capacity is established for each person; it arises at birth and disappears at death. But with legal capacity everything is completely different:

• It appears in full only from a certain age (adulthood);
• It may be limited on the grounds established by law. In some cases, a person may lose it completely. Those for whom the deprivation procedure is applied are called incompetent.

If a person has limited legal capacity or is completely deprived of it, he cannot make some or all transactions, enter into legal relations, or apply to government agencies and the court. Specially appointed representatives - trustees and guardians - act on his behalf.

The grounds and procedure for establishing guardianship and trusteeship are regulated by law.

In particular, it is provided that in certain cases neither guardians nor trustees can be appointed. This applies to cases when wards are placed in medical or social institutions intended for orphans, mentally ill, etc. In this case, guardianship or guardianship of children and adults is carried out by the administration of such institutions, and the organization itself carries out the functions of representing the interests of wards. Her powers will be the same as those of the appointed guardians or trustees.

Prompt assistance in obtaining guardianship and trusteeship

Sign up for a consultation with a specialist

+7

Difference between guardianship and guardianship

Although guardians and conservators act as liaisons between incapacitated or partially disabled people and others, their tasks and responsibilities vary significantly. Basically, guardianship differs from trusteeship in the following ways:

• Guardianship is established over children who are under 14 years of age, as well as over citizens whom the court has duly declared incompetent. In this case, the ward himself does not make any transactions, does not personally enter into any legal relations - the guardian always and everywhere acts on his behalf;
• Guardianship is established over children who have already reached the age of fourteen, but have not yet become adults. Guardians are also appointed to persons whose legal capacity is limited. However, the ward himself acts in all legal relations - the trustee only gives (or does not give) his consent to the exercise of rights and the acquisition of responsibilities by the ward.
• A guardian is appointed by force, but a trustee can be appointed at the request of the person himself. In particular, for disabled or elderly people who need help, it is possible to use a form of guardianship such as patronage.

The concept of legal relations

What is the difference between guardianship and trusteeship? The difference between guardianship and trusteeship is that the guardian is required to show constant attention to his ward. Thus, he compensates the child for lost family ties and actually raises him. A guardian helps an incapacitated adult adapt to the social environment, provides care for the patient and, to the best of his ability, contributes to improving his health.

Guardianship is established over a partially capable and fully capable person. The trustee is only required to assist the citizen in fulfilling his rights and obligations.

1. Guardianship is a form of arrangement for citizens who have been declared incompetent by the court or are so due to age.

   
   Based on their status, wards cannot fully enjoy their rights as citizens of the Russian Federation. The guardianship agreement allows the guardian to protect his ward in any instances and institutions, as well as freely conduct transactions on his behalf.

2. Guardianship is designed to help persons limited in legal capacity by the court or initially due to age in the exercise of their rights and obligations; it also acts as a deterrent.

   The law does not in any way restrain a fully capable person under guardianship from legal independence; the trustee here simply acts as his assistant.

A child at the age of 14 acquires a number of rights and freedoms, and guardianship over him is automatically transformed into trusteeship; there is no need to re-register documents for this. At the age of 18, guardianship also ends and the citizen becomes legally completely independent. Guardianship can end earlier if a person has entered into a marriage relationship or gotten a job at the age of 16.

Social services identify citizens who need government support and provide them with the necessary assistance.

In addition, the functions also include:

• examination of the conditions in which a citizen is incapacitated or has limited legal capacity;
• finding a suitable guardian and facilitating appointment;

• 
  clarification of the consent of the relatives of the proposed guardian;

• preparation of documents for registration (guardianship and trusteeship of minors, adults);
• further monitoring of the ward and the activities of the guardian (including in the form of regular checks);
• removal of a guardian if necessary;
• preliminary placement of a child in a special children's institution;
• providing assistance in raising (caring for) the ward;
• provision of financial assistance for the maintenance of the ward.

Types of guardianship and trusteeship

Guardianship is established:

1. 
   Over young children deprived of parental care and orphans.

   Read also:  How to draw up a settlement agreement on the payment of child support?
2. Over incompetent adults who become so due to a mental disorder, when the ward does not realize the significance of his actions and is unable to manage.
3. Over the property of unknown absent citizens.

People who have been absent from home for 1 year and whose whereabouts cannot be determined are recognized as missing upon application to the court.

Based on this, guardianship is assigned over their property. The purpose of such a court decision is to protect the rights of the missing person and preserve his property. If management of the property is required, the court will appoint a trustee who will be able to conduct transactions on behalf of the missing person, however, transactions for the alienation of real estate will require the consent of an employee of the guardianship authority. If the place of a missing citizen is discovered, his status by court decision is canceled and control over the property is returned to him.

Guardianship is established:

1. Over teenagers from 14 years of age, deprived of parental care and orphans.
2. Over adults with limited legal capacity, recognized as such by the court due to alcohol or drug abuse.
3. Over capable adults who need patronage for health reasons.

Principles of guardianship and trusteeship

When exercising their powers, guardians and trustees are guided by the following principles:

• Voluntariness. No one can be appointed as a guardian or trustee against his or her will, and the person appointed has the right to refuse to perform his or her functions at any time;
• Controllability. The activity of the guardianship and trusteeship authorities consists precisely in supervising how guardians and trustees exercise their powers. In particular, the trustee and guardian do not have the right to carry out or give consent to transactions as a result of which the property of the ward is reduced (sale, donation, long-term lease, etc.), without the consent of the guardianship authority. There are also legal restrictions on transactions between a guardian or trustee and a ward: only those types of transactions are allowed, as a result of which the property of the guardian is transferred free of charge to the ward as a gift or use;
• Maximum protection of the rights and interests of those on whose behalf they act, exercising their powers;
• State support for trustees and guardians. In particular, in a number of cases the state pays benefits for child custody, etc.

Rights and responsibilities of the child’s guardians (trustees).

The above-mentioned circumstances require the adoption of prompt measures to place the child in a state institution or in a family that has expressed a desire to raise a minor.

The guardian (trustee) must meet the requirements of current legislation, in particular, not have medical contraindications (Order of the Ministry of Health No. 290n).

Priority is given to relatives of the person left without parental care.

Children over 10 years of age must give their consent to the device. The procedure must be carried out taking into account their opinion.

A claim in court for the adoption of a child. [26.00 KB]

Guardianship of a child: from an orphanage, payments, disabled.

Guardianship and trusteeship of children

Quite often, guardianship and trusteeship of minors is established. This usually happens when young wards, for some reason, find themselves without parental help: parents have died, are deprived of their rights or have their rights limited, due to illness are unable to fully care for their children, etc.

As already mentioned, guardianship is established over children under 14 years of age, and the powers of the guardian include the complete replacement of his wards in all legal relations. After 14 years and before reaching 18, guardianship is established over children, in which permission is only given to carry out transactions, and the ward himself makes them (and, accordingly, bears responsibility).

A set of measures for minors is introduced within a month after the relevant organization (guardianship authority) establishes that the child has been left without parental care. If a guardian or trustee has not been found within the specified time, the child is transferred to an educational or medical institution of the appropriate profile.

In relation to guardianship and trusteeship of children, it is necessary to mention such an option as temporary guardianship or guardianship. If parents are unable to fulfill their responsibilities for some time for good reasons, they can apply to the guardianship authority with a request to appoint a temporary guardian or trustee. The use of this form of guardianship or guardianship over children is allowed for a period of up to 3 months, in exceptional cases - up to six months.

Temporary guardianship is also used in cases where a child is temporarily placed in one of the specialized (in particular, medical) institutions where the permanent guardian cannot be present. In this case, the tasks are performed by the administration of the institution. At the same time, the powers of the permanent guardian do not cease, and after the return of the child, he continues to exercise guardianship responsibilities.

Types of guardianship

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 2021, types of guardianship can be divided into:

• depending on the age of the ward;
• depending on the status of the ward;
• depending on the payment to the guardian;
• depending on the number of subjects.

Depending on the ward

Guardianship can be appointed over a citizen who is not endowed with legal capacity.

These include:

• minors;
• incompetent.

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.

Juvenile

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 2021, 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.

Important! The appointment of preliminary guardianship is not mandatory; if there is already a candidate with a valid conclusion who wants to accept the child, then he can immediately receive permanent guardianship.

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 payment

The law distinguishes the following types of guardianship:

• gratuitous;
• paid.

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.

Guardianship of incapacitated adults

In addition to guardianship over children, it is also possible to establish guardianship over adults. The conditions for this are very simple: the ward must be deprived of legal capacity by a court order. This procedure is carried out if a person suffers from a mental illness and cannot be responsible for his actions.

The powers and tasks of a guardian with an adult ward will be as follows:

• act on behalf of the ward in all transactions;
• contact medical institutions in order to provide assistance to the ward;
• demand payment of benefits, pensions and other payments due to the ward;
• apply to the court and other government bodies in order to protect the rights of the ward;
• protect the property of the ward;
• prevent a citizen from causing harm to himself, others or their property;
• if the patient’s mental condition has improved, and this is confirmed by the medical organization, apply for the return of partial or full legal capacity.

Classification by number of subjects

As a general rule, one guardian has one ward and vice versa. The law specifies cases when there is more than one entity on one side or the other. For example, when:

• one guardian has several wards,
• one ward has several guardians.

There may be several wards if the guardian takes on the responsibility of caring for two or three siblings. The guardianship authority tries not to separate children from the same family.

A child may have several guardians (trustees) if, for example, grandparents have arranged care for their grandchild. Such cases occur most often.

Guardianship of adults

Like guardianship, guardianship can also be established over adults. Its legal features are that it applies to wards who are not deprived, but limited in their legal capacity. The tasks and functions of a guardian appointed to an adult ward are similar to those of a guardian over a teenager, but the conditions of the appointment will be completely different:

• a guardian for a teenager is appointed in any case, solely due to age;
• For an adult, a guardian is appointed only on the basis of a court decision to limit legal capacity.

Common and distinctive features

The consent of the ward for the establishment of guardianship (trusteeship) is not at all necessary, as is the consent of the person appointed as the guardian (trustee). But it is taken into account.

Important! The main difference between these two concepts is that the guardian completely replaces the ward, performing all actions independently, albeit in his interests. The trustee only ensures that the rights and interests of his ward are not violated by third parties.

Patronage

Finally, there is another additional form of assistance to citizens, such as patronage. Its features are as follows: an adult and capable citizen, who for health reasons is not able to defend his rights or fulfill his duties, has the right to use the services of an assistant assigned to him by the guardianship authorities.

In this case, the appointment of an assistant is made with the mutual consent of both the citizen himself and the person who will provide patronage.

The legal features of this form of assistance as patronage are as follows:

• Unlike guardianship of the incapacitated, an assistant acts on behalf of a person based on a contract. The citizen to whom an assistant is assigned is not deprived of his legal capacity and, if necessary, has the right to act independently;
• The assistant can dispose of the ward’s property only with his consent and only within the limits established by the agreement concluded between them;
• An assistant is appointed only with the consent of the ward. In the case when patronage is used, the person under care has the right to refuse its help at any time.

These features largely link patronage to representation or service provision.

Rights and responsibilities of a guardian who has adopted a child into the family.

Guardianship duties are performed within the framework of an agreement with the O&P body and the requirements of Art. 15 Federal Law No. 48. The citizen becomes the representative of the ward in government agencies and other structures.

The guardian also needs to take care of the spiritual and physical condition of the ward, his mental development, and material support. Educational methods are chosen independently.

At the same time, the patron has the right to choose educational institutions and clubs where the child will go, at his own discretion.

Also, the guardian can establish the procedure for communication of children with citizens who are relatives of children transferred to a new family for upbringing.

Termination of guardianship and trusteeship

The grounds for termination of guardianship and trusteeship are specified in the law. These include:

• The ward has reached the required age: 14 years for guardianship, 18 for guardianship;
• Emancipation or marriage before age 18.
• Recovery of a person deprived of legal capacity due to mental illness. In this case, a conclusion from psychiatrists and a court decision are required;
• Removal by the court of the restriction of legal capacity at the request of the trustee or guardianship authority.
• Violation of the conditions under which guardianship and trusteeship of minors or adults were established;
• Death of the ward himself, or of a guardian or trustee.

This list of grounds for termination of guardianship and trusteeship is exhaustive.

After the powers of a guardian or trustee are terminated, he is obliged to report on the condition and management of the ward’s property.

Author of the article

Termination of child custody obligations.

Guardianship responsibilities terminate automatically when the ward reaches 14 years of age.

Further, guardianship is established in relation to the latter. The social measure is valid until the child reaches adulthood (Article 40 of the Civil Code).

In some cases, citizens are deprived of their status for reasons other than their children reaching a certain age.

This may happen due to the circumstances specified in Art. 29 Federal Law No. 48:

• death of one of the parties;
• return of the child to his mother and father;
• transfer of a minor to a special institution;
• the wishes of one of the parties.