Can a guardian dispose of the property of the ward?

The current legislation of the Russian Federation carefully regulates issues of guardianship and trusteeship. This allows us to protect the rights of the most vulnerable categories of citizens - minors and incapacitated people.

Quite often, guardians have pressing questions regarding what their rights are. They want to know whether the guardian can dispose of the property of the ward? Will he have legal rights to the inheritance after the death of the ward, or not? The answers to these questions can be found below in the article.

Does the guardian have the right to dispose of property?

The main function of a guardian is to protect the rights and property interests of the ward. One of them is property rights and obligations.

The rules for disposing of property vary depending on the type of property.

Types of income can be divided:

1. Alimony, pension, benefits.
2. Real estate.
3. Movable property.
4. Deposits.

ward child

In accordance with Art. 31 of the Civil Code of the Russian Federation, guardianship is assigned over a child aged 0 to 13 years. In accordance with Art. 28 of the Civil Code of the Russian Federation, children of this age are deprived of legal capacity.

They cannot make transactions on their own, with the exception of small household ones. Therefore, the guardian is given the right to full control over their property.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

However, the inability to dispose of property does not mean that the child does not have any income. A child, regardless of age, can be the owner of movable and immovable property.

The ward can receive property as an inheritance, as a gift, or be a party to a purchase and sale transaction. Although his interests are represented by a guardian, it is the minor who acquires the right of ownership.

In addition, the child may be the owner of the cash deposit. The law allows the opening of bank accounts in children's names. Moreover, the funds for them are the personal property of the child. Neither parents nor guardians are entitled to them.

incompetent

In accordance with Art. 31 of the Civil Code of the Russian Federation, guardianship is appointed over an adult who is declared incompetent by a court decision. The minimum age of such a ward is 18 years, the maximum is not established by law.

Just like minors, incompetent persons cannot independently manage their property. Therefore, the protection of their property rights is entrusted to the guardian.

At the same time, the incapacitated person is not limited in the possibilities of obtaining property. He can be a full-fledged heir and accept property as a gift.

If a citizen was deprived of legal capacity in old age, then during his life he could receive many pieces of property, make personal contributions, and buy shares.

Additional resolution

A particularly important point is that legal transactions require permission from the guardianship authorities. In fact, the guardian will not be able to conduct a transaction with the property of his ward until the authorized body approves the process.

This means that the guardian cannot actually dispose of the property of the person under guardianship. More precisely, property is allowed to be used in the interests of the incapacitated person and only with the permission of the guardianship and trusteeship authorities. The guardian is prohibited from arbitrarily disposing of property. This is stated in the Civil Code of the Russian Federation (Article 37).

What property of the ward can the guardian dispose of?

The rules of disposal directly depend on the type of property. In some cases, a representative can make independent decisions. In others, you must obtain permission from the guardianship department.

To clarify what property a guardian can dispose of, let’s look at the types of property.

Alimony, pension, benefit

From 2021 Art. 37 of the Civil Code of the Russian Federation provides for the need for a guardian to open a nominal account. This is a special bank account, which is concluded between 3 parties (credit institution, guardian and ward).

From the moment guardianship is registered, the citizen must transfer alimony, pensions and benefits of the ward to this account. The guardian receives the right to independently (without the permission of the guardianship department) withdraw funds from the account and spend them in the interests of a minor or incompetent person.

The guardianship department exercises only general control over the expenditure of funds. Every year, the guardian is required to provide the guardianship department with a report on expenses incurred.

Moreover, the guardian does not include expenses for food, clothing, and shoes in the report. It is necessary to indicate only expensive purchases (more than 2 times the cost of living in the region), costs of medical care and repairs of the ward’s home.

If misuse of funds is detected, the guardianship department submits information to the prosecutor's office. The guardian is removed from his duties, and a criminal case for fraud is initiated against him.

Real estate

Real estate or a share in an apartment that belongs to the ward remains his property. To sell it, you must obtain prior permission from the guardianship department.

However, guardianship departments often refuse to complete the transaction. With regard to the property of minors, this is due to the need for the state to provide housing under a social lease agreement to all orphans who do not have an apartment. Therefore, experts prohibit guardians from leaving children without real estate.

Permission is given only as a last resort. For example, if a guardian wants to buy similar housing in another city, and the child is going to study there.

The home of an incapacitated person cannot be sold either. Permission can only be obtained if the ward is provided with a similar apartment. The guardian must justify the need for the sale.

Every year, the guardian reports for the safety of the ward’s real estate, as well as for paying property taxes for housing.

Example . Victoria was her grandfather's guardian. The man was declared incompetent 2 years ago. In addition to senile dementia, the patient had renal failure. Therefore, I underwent dialysis 2 times a week. In order to avoid making the long journey to the hospital, Victoria decided to sell her grandfather’s apartment and move him closer to the clinic. The guardianship department agreed to the transaction.

Movable property

Movable property includes vehicles, furniture, jewelry, and household appliances. Theoretically, the ward can be the owner of such things.

The law provides for the need to compile and store an inventory of property in the personal file of the ward. The document contains a list of all the property of the ward.

If it becomes unusable, the guardian must report this to the guardianship department. Upon presentation of the relevant documents, the item is excluded from the inventory.

The law does not prohibit a guardian from selling the ward's movable property, which does not require state registration. However, it will be necessary to explain the reason for the sale to the guardianship department, and the funds will be deposited into the ward’s account.

Deposits

A child or a disabled person may have personal deposits in credit institutions. The guardian has no right to withdraw funds from them.

Moreover, the bank will refuse to carry out the operation without special permission from the guardianship department.

Such consent is one-time only. A citizen submits an application for the need to purchase a certain product that cannot be purchased at the expense of the ward’s pension. For example, a mobile phone or a computer.

After the funds are issued, the bank specialist takes the consent. The guardian is obliged to account for the purchase made.

Waste of earmarked funds will result in the representative being required to reimburse the amount spent. And the guardian himself may be prosecuted for fraud.

Example . In 2021, a criminal case of fraud was considered in the Chelyabinsk region. The adoptive father of 8 minor children withdrew money from the children's accounts. In total, the amount was 1,176,000 rubles. The man was sentenced to 3 years suspended imprisonment.

Will

Can a guardian dispose of the property of the ward? The rules of intestate succession provide that legal representatives may receive property from wards under testamentary instruments. But with some restrictions.

A guardian may act as an heir if the will was originally written by an adult before he was declared partially or completely incompetent. Otherwise there is no chance of inheritance. After the death of the ward, the property will be distributed among the legal heirs (relatives) of the incapacitated person.

Transactions with the property of the ward

The guardian has the right to use the property of the ward. But he is not given the opportunity to freely dispose of it. If the transaction is urgently necessary, then it is necessary to obtain the consent of the guardianship department.

To do this, you must contact the guardianship department at the location of the personal file of the guardian’s family. The representative fills out an application and provides a package of documents.

The application must explain the reasons for the transaction. The funds received are transferred to the ward's account.

Concept

Does a guardian have the right to dispose of the property of the ward? First you need to understand who we are talking about.

Who are called guardians? These are citizens who are entrusted with the care and education of certain categories of the population. Guardians look after young children (up to 14 years old), incapacitated, mentally ill and mentally ill children. These are representatives of citizens in need of care.

It is worth paying attention to the fact that legally significant transactions will be carried out with the help of guardians. These citizens represent the interests of their wards. We can say that they are representatives of the incapacitated.

Trust management of the ward's property

In accordance with Art. 38 of the Civil Code of the Russian Federation, a guardian can exercise trust management of the ward’s property. For this purpose, a trust management agreement is concluded with the guardianship department.

The agreement is a kind of consent of the guardianship department to use the property of the ward for the purpose of making a profit. It will be needed, for example, to rent out the ward’s apartment.

Important! If a citizen acts as a guardian of an incompetent person on a remunerated basis, then he has the right to receive a certain percentage of his income (no more than 5%). For example, when renting out a ward's apartment, the representative will be entitled to 5% of the pension and rent.

Funds from the trust management are transferred to the personal account of the ward and can be used for his needs.

Subordination

But can a guardian dispose of the property of the ward? To fully answer this question, we need to understand to whom these citizens are accountable. After all, guardianship is regulated by the state in Russia!

Guardians are accountable to the guardianship and trusteeship authorities. It is this service that the legal representatives of the incapacitated will have to contact. Otherwise, performing legally significant transactions will be problematic, or rather, impossible. This is quite normal.

Transactions between guardian and ward

The law prohibits transactions between a guardian and a ward where the guardian is the beneficiary. That is, he cannot buy the apartment of the person under his care. Or, on his behalf, give yourself an object of property of the ward.

Also, transactions cannot be made between the ward and the guardian’s relatives. In this case, relatives include spouses, children, parents, brothers and sisters.

However, transactions in the opposite direction are allowed. For example, a representative may give property as a gift. A prerequisite is that the transaction is free of charge for the ward.

About alienation

But almost everywhere you can find exceptions to the rules. And in the issue under study they also occur. Sometimes the ward's property can be alienated. Otherwise, reduction of the size of the property of an incapacitated person or a child by their legal representatives is prohibited. This must always be remembered. Otherwise, you may encounter prohibitions from the guardianship authorities.

Alienation of property in the situation under study is possible:

• if there was a forced collection from the ward on account of his property;
• when registering exchange and annuity with the condition that the operations are carried out in favor of the incapacitated person;
• if the ward changes his place of permanent residence;
• in exceptional situations (for example, money is urgently needed for the treatment of a ward), if this is required by the protection of the rights, interests and freedoms of the incapacitated person.

That is, in everyday life, a guardian has no rights to the property of his ward. He merely acts as a kind of intermediary protecting the incapacitated person. It will not be possible to use what belongs to children and the incapacitated in one’s own interests.

Appointment of guardianship

Guardianship is a form of arrangement for minor children and adults, but incompetent persons, to protect their legal rights and interests. It implies that an individual in need of temporary or permanent protection is placed under the official supervision of a person who can be responsible not only for himself, but also take additional care of another. Guardianship has two main directions:

1. Over minor children who do not have parents or were removed from the family due to a violation of their rights and interests.
2. Over adult citizens who have mental disorders and have been declared incompetent by a court.

Guardians can be:

1. Close relatives of the ward.
2. Friends, acquaintances or neighbors who have expressed a desire to take responsibility.
3. Strangers.

In all cases, one can become a guardian only if the candidate meets the requirements set by the guardianship department and has appropriate living conditions. After approval of the candidate, the guardianship department draws up an act transferring guardianship powers to the specified person. At the same time, the representative of the incapacitated person receives a number of duties that he must fulfill and rights that allow him to exercise his powers.

Note!

The candidate’s rights, although extensive, have serious restrictions, beyond which it is prohibited by law.

Results

Now it is clear whether the guardian has the right to dispose of the property of the ward. Such persons do not have complete freedom of action, but with the permission of the guardianship authorities, legal transactions can be made in the interests of the incapacitated.

Legal guardians can be heirs only when they are also relatives of the deceased. And taking into account the line of inheritance. According to a will, there is almost no chance of receiving property from the person under guardianship - only if the person, being of sound mind, bequeathed something to the future legal representative.

It is enough to remember one rule: if there is no permission from the guardianship, you will not be able to conduct a transaction with the property of the ward. Experts assure that the relevant body only approves operations that improve the property status of the incapacitated.

FAQ

We will tell you further where to get a registration certificate in Form 8.

You can find a form for a certificate of registration in this article.

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
• All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

That's why FREE expert consultants work for you around the clock!

1. via the form (below), or via online chat
2. Call the hotline:
   Moscow and the Region
3. St. Petersburg and region
4. Regions

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.