What is the difference between adoption and guardianship (trusteeship)?

At the moment, such concepts as guardianship and trusteeship are established on the territory of the Russian Federation. In each individual case, these terms have some differences, but they also have certain similarities. All these points are enshrined at the legislative level, but not everyone understands what a guardian and trustee mean, and what is the difference. These points are inherent in the appropriate care of a child or children, while also affecting an incapacitated citizen. In this case, you will need to clearly consider how guardianship differs from such a term as trusteeship.

Who is a trustee and guardian

A guardian is a person who provides protection of rights, living conditions and care for people who are unable to do this themselves. He performs parental functions and resolves the child’s life issues.

People in need of care include the following:

• orphaned children under 14 years of age;
• incompetent citizens of any age.

Children need guardianship under the following circumstances:

• biological parents have been deprived of parental rights, are missing, are incapacitated, or due to serious illness are unable to fulfill their obligations;
• parents are absent for objective reasons (on a temporary business trip, hospitalized).

Guardianship can be temporary or permanent.

A trustee is a person who creates the necessary living conditions for the realization of the property and social interests of the child. Guardianship is established over children aged 14-18 and partially incompetent persons.

Official representatives of children have the right to claim many government benefits, payments and additional payments, many of which are established by local administrative authorities. If temporary guardianship has been issued, then the guardians are not entitled to financial support.

Official representatives of adults who are completely or partially deprived of legal capacity do not receive government payments, with rare exceptions.

Legislative regulation

On the territory of the Russian Federation, regarding such activities, all aspects are enshrined in the current legislation. All established points are regulated by the following regulatory legal acts:

• Civil Code of the Russian Federation Article No. 31.
• Civil Code of the Russian Federation Article No. 32.
• Civil Code of the Russian Federation Article No. 33.
• Civil Code of the Russian Federation, article No. 34, and additionally some provisions of the country’s Family Code.

Separately, it is worth highlighting some provisions of regulatory legal acts that are established by local authorities in the constituent entities of the Russian Federation, and additionally the provisions of a number of Federal laws of the country.

Important. In practice, all this is necessary to significantly distinguish between these two terms, which are close to each other, but have specific differences in opportunities, rights and obligations.

On the territory of the Russian Federation there are certain segments of the population that need specific care and protection of their own interests. Of course, all these individuals are not united into one specific group, but belong to completely different strata of society. That is why they are provided with appropriate care and support, which is indicated not only by legislative bodies, but also by the relevant persons. These representatives do everything necessary to make the life of their charges complete, for which they receive certain established privileges from the state.

Differences between a guardian and a trustee

The difference between guardianship and trusteeship is as follows. The guardian independently decides all issues regarding the ward and bears full responsibility for his actions. The trustee resolves all issues of the ward together with him, coordinating with the ward all planned actions.

The guardian and trustee must perform the following duties:

• caring for the physical condition and health of the person under care;
• informing authorized bodies that the family is changing their place of residence;
• living with the person under guardianship (legislation allows a child to live independently if he is 16 years old and guardianship officials agree to this);
• annual reporting on the expenditure of funds that are transferred to the ward.

The guardian and trustee can manage the child’s money if the child agrees to do so. For this purpose, a power of attorney is usually issued.

The differences between guardianship and trusteeship also lie in the individual obligations of these persons.

The guardian has the right or obligation to:

• make transactions on behalf of the ward (except for those that can only be carried out in person - for example, transfer of property by inheritance);
• file a claim in court that the transaction made by the ward is invalid;
• bear property liability for damage caused by the ward, and be responsible for the child’s transactions.

The trustee is obliged or has the right:

• obtain permission for the ward to conduct transactions (except for those transactions that the ward can conduct himself);
• file a lawsuit in court to declare the ward’s transaction and its legal consequences invalid;
• bear subsidiary property liability.

The differences between a guardian and a trustee are summarized in the table:

At the same time, the legislation establishes prohibitions that apply to both guardians and trustees:

• You cannot use the property of those under guardianship for personal interests;
• You cannot enter into credit or loan agreements on behalf of the ward acting as a borrower;
• It is impossible to draw up an agreement on the transfer of the property of the person under guardianship for use if the period of operation is at least 5 years, as well as on the delivery of the object as collateral, for rent, or for legal transactions.

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Requirements

Only a legally capable person over 18 years of age has the right to become a guardian or trustee.

The legislation establishes the category of persons who cannot formalize guardianship or trusteeship:

• minors (even if they have acquired full legal capacity - for example, they have registered an individual entrepreneur or registered a marital union);
• persons who have been deprived of parental rights (or limited in them);
• people diagnosed with drug/alcohol addiction;
• people who were already guardians/trustees in the past, but were subsequently removed from fulfilling these obligations;
• people who were adoptive parents in the past, but due to illegal actions they lost this status;
• people suffering from a serious illness, as a result of which they are unable to provide full care for their child.

Differences between them

So, what is the difference between guardianship and adoption?

These concepts differ in the following aspects:

1. Validity period of the procedure. Adoption is a permanent form of arrangement, while guardianship is temporary. The rights of a guardian are sometimes limited.
2. Legal aspects. A guardian is a person who cares for his ward and performs specific duties. An adoptive parent is the de facto parent for a child who is left without a mother or father.
3. Payments. Guardianship is a paid form of family arrangement. It is expected to pay benefits for support and care of wards. Adoption is a free type of placement for orphans.
4. Reporting. When choosing guardianship, you will have to keep a strict record of the care provided to the ward. Reports are sent annually to the guardianship authorities. Adoptive parents are checked by employees unplanned.
5. Saving personal information. When registering guardianship, the personal data of the person under guardianship – full name – is saved.
   And upon adoption, they can be changed. Only adoption presupposes the acquisition of parental authority.
6. Cancellation procedure.
   Guardianship ends on the basis of Article 40 of the Civil Code of the Russian Federation. Adoption is canceled only by a court decision upon deprivation of rights (Article 140 of the RF IC).

Registration of guardianship/trusteeship

Anyone wishing to take custody or guardianship must provide the following documents to the territorial department of social protection of the population:

• statement;
• a certificate from the place of employment containing information about the position and average earnings for the year;
• certificate of other sources of income for unemployed persons (for example, receipt of a pension);
• an extract from the house register or other title documentation for housing;
• a photocopy of the financial personal account from the residential address;
• a certificate stating that the applicant has no criminal record (issued at the police department);
• medical report on the current state of health;
• a photocopy of the certificate of registration of the marital union;
• written consent to the registration of guardianship/trusteeship on the part of other family members (including children over 10 years old);
• a certificate stating that the residential premises comply with all standards and requirements;
• autobiography of the applicant.

1. How to obtain guardianship for a child? 2. Guardianship of an elderly person

Where can I find a child for guardianship or adoption?

Information about children in the Federal Data Bank on Orphans. You can go to the main page, select the region, gender of the child, hair color, eyes and other parameters, and click the “Search” button.

You will see a page with photographs and descriptions of minors, where you will be provided with information:

• Application number, date of birth;
• External characteristics;
• Description of character and skills;
• Possible forms of the device;
• Reason for lack of parental care;
• Photo publication date;
• Where to contact (address, telephone number of OOiP).

If you already know who you want to adopt, submit documents directly to the AOiP.

Release from obligations

A guardian and trustee may be released from performing their duties in the following cases:

• the child was adopted or returned to his parents;
• a person improperly fulfills his obligations, leaves the child without supervision and assistance (in this case, he will not only be deprived of the appropriate status, but will also be held accountable depending on the severity of the consequences);
• the guardian or trustee himself asked to be released from fulfilling obligations to the child.

Features and nuances

In addition to guardianship and trusteeship, there is another form of providing for people - patronage. This form is established for persons over 18 years of age who suffer from serious health problems and cannot protect their interests or exercise their rights. The foster relationship is not associated with the limitation of legal capacity or its complete deprivation; there is no need to exercise full control over the ward. A person makes decisions independently, without obtaining permission, and an assistant only facilitates their implementation.

A civil contract is drawn up with the assistant, the format of which depends on the services provided. Thus, a trust management agreement or mandate may be concluded. The contract is concluded for a limited period, services are provided on a paid basis. Once the contract expires, the patronage is no longer valid.

To apply for patronage, you must contact the territorial department of the guardianship authorities with an application and documents.

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