The procedure for establishing guardianship over an incapacitated citizen

It happens that the court recognizes an elderly person as incompetent. This means that he is not able to take care of himself, make informed decisions and be responsible for his words and actions. His guardian will help him cope with all this. On behalf of an adult incapacitated citizen, the trustee will perform all significant actions.

Guardianship of an incapacitated person involves certain rights and obligations of the person who has assumed guardianship functions. The main legislative acts regulating relations in this area are the Civil Code and the Federal Law “On Guardianship and Trusteeship”, which came into force on September 1, 2008).

The procedure for declaring a citizen incompetent

The following may apply to the courts in order to declare a citizen incompetent:

• close relatives, and they may not even have a joint household with the incapacitated citizen;
• guardianship management;
• institutions providing psychiatric and other medical care.

Going to court is the only way to declare a person incompetent. And the basis for such an appeal is the only expert opinion of a psychoneurological dispensary. This must be clearly understood by his relatives.

If the court makes a positive decision, within three days it brings this information to the guardianship authority, which will have to appoint a guardian over the incapacitated person. And a citizen in respect of whom such a court decision has been made, upon its entry into legal force, is considered limited in his rights.

In what cases is guardianship introduced in 2021: circumstances

The appointment of a guardian is mandatory if the medical authority that issued the conclusion on the citizen’s state of health has made a decision on this. Confirmation of the fact is carried out when the relevant decision is issued by the guardianship and trusteeship authority, an act of the Bureau of Forensic Medicine and other documents.

Guardianship is established by a court decision based on the recommendations of guardianship and trusteeship. In this case, the property of a citizen recognized by law as incompetent is transferred to the full disposal of the appointed representative. Transactions made by the owner independently do not have legal consequences, do not entail the exchange of property for money or other results of legal acts.

Expert opinion

In some cases, when the recognition of a person as incompetent is temporary, it is possible to establish guardianship - that is, guardianship for a short period, until recovery or other legal consequences occur. Under guardianship, a citizen has the right to make small everyday transactions, but large ones require the written permission of the trustee.

Rumyantseva O.T., employee of the guardianship and trusteeship authority

Requirements for applicants for the role of guardian

The law stipulates a list of persons who can apply for the role of guardian of an incapacitated person. They should file a claim for establishment of guardianship over the incapacitated person with the guardianship authority:

1. family members, relatives - second spouse, one of the parents, sister/brother, children who have reached the age of majority;
2. a person who is not a relative but has demonstrated a desire to become a trustee.

Moreover, neither relatives nor the person under guardianship should have any objections (if he is able to express his will). The personal qualities of the applicant, his health and other factors are also taken into account.

If a decision is not made within a month and a guardian has not been appointed, the placement of the incapacitated person in a specialized institution is formalized.

Last changes

Our experts monitor all changes in legislation to provide you with reliable information.

Not every guardian treats his acquired status and his ward with dignity, since sometimes this obligation becomes a burden rather than a calling. Third parties who are interested in the fate of the ward are interested in how to deprive the rights of a guardian. However, not everyone can really help solve this problem.

Deciding that a person should stop exercising their rights as a guardian is quite difficult because the reasons must be compelling and precise. You can’t just talk about the problem, you need to substantiate and prove it. A statement alone cannot prove the existence of certain circumstances. Therefore, before writing applications for deprivation of the rights of a guardian and sending statements of claim to the court, collect the evidence base.

What kind of guardian should be?

The law clearly stipulates who can be the guardian of an incapacitated person.

Must be an adult, capable and willing to take on the responsibility of guardianship of an insane person. He must be able to perform guardianship duties. He is also required to be officially employed and not have problems with the law.

If the incapacitated person is treated in an appropriate institution, he is the guardian.

Responsibility of a guardian for the actions of an incapacitated person

In accordance with Art. 1076 of the Civil Code of the Russian Federation, if an incompetent ward causes damage to the property of third parties, then the guardian is obliged to compensate for the damage caused. The exception is situations where the representative can prove that the harm was caused through no fault of theirs.

Example . Victoria is the guardian of her incapacitated grandfather. The man does not pose a danger to others. The girl went to the store with her ward. A drunk group entered the store. The teenagers scared the grandfather. The man got scared and ran. He pushed the rack of alcoholic drinks. The rack fell and the bottles broke. The guards detained Victoria and her grandfather. The administrator began to demand compensation for the damage. The girl demanded to call the police. In the protocol, she recorded that the rack was located in violation of fire regulations. The minimum distance between posts was not observed. The store administration went to court demanding compensation for damages, but the girl proved that the cause of the current situation was a violation of fire regulations. The court refused to satisfy the demands.

Who is not appointed as a guardian?

The Family Code in Article 146 names those who cannot be guardians:

• chronic alcoholics or drug addicts whose illness is documented by a medical institution;
• those whom the court has already removed once from performing guardianship duties;
• persons unable to perform duties due to health reasons.

This applies to cases where guardianship is assigned to adult incapacitated citizens. If the person under care is a child, the list is updated with:

1. deprived of limited parental rights;
2. former adoptive parents, when they became such through their own fault.

In any case, a court decision is required to enter into force.

What is meant by guardianship

Guardianship is a form of assistance to people who have lost their legal capacity as a result of mental or other illnesses that have caused them to lose the ability to perform legally significant actions and take care of themselves independently.

For a guardian, obtaining the right to look after such a person is always associated with significant difficulties and time costs. As a rule, only people who are able to experience the pain of others and who have high moral and ethical qualities agree to such a responsible step.

Attention! Not every person can obtain the right of guardianship over an incapacitated person.

Procedure for registering guardianship

The procedure for establishing guardianship over an incapacitated person can be started after the court has made its decision on the similar status of the sick person.

Let's talk about how to arrange guardianship of an incapacitated person.

A person applying for the title of guardian must submit a written application for guardianship to the guardianship and trusteeship authority of the district where the person whom he intends to guard lives.

A package of documents should be attached to the application for guardianship of an incapacitated person (more on them later).

After the guardianship authority has reviewed and approved the documentation, a commission will be appointed whose task is to examine the living conditions of the person wishing to perform guardianship duties. Only 7 days are given to make a final decision.

No more than a month should pass from the receipt of a court decision to the appointment of a guardian.

The guardian whose candidacy has been approved by the guardianship receives the corresponding document. An agreement is concluded with him and he is introduced to new rights and responsibilities.

This is the procedure for establishing guardianship over an incapacitated citizen.

Important! If the guardianship authority immediately needs to appoint a guardian, an act of temporary guardianship is adopted. Preliminary guardianship of incapacitated adults is terminated if the temporary status is not changed to permanent within six months.

Temporary transfer of incompetent citizens placed under supervision to institutions

According to Article 32 of the Civil Code of the Russian Federation, guardianship is established over citizens recognized by the court as incompetent due to a mental disorder, to protect their rights and legitimate interests. The provisions of the Federal Law of April 24, 2008 N 48-FZ “On Guardianship and Trusteeship” (hereinafter referred to as the Federal Law) apply to relations arising in connection with the establishment, implementation and termination of guardianship. Based on Part 2 of Article 1 of the Federal Law, the provisions relating to the rights, duties and responsibilities of guardians apply to organizations in which incapacitated citizens are placed under supervision. Article 35 of the Civil Code of the Russian Federation provides that a guardian is appointed by the guardianship and trusteeship authority at the place of residence of the person in need of guardianship, within a month from the moment when these bodies became aware of the need to establish guardianship over the citizen. If a person in need of guardianship is not appointed a guardian within a month, the duties of a guardian are temporarily assigned to the guardianship and trusteeship body. Incapacitated citizens placed under supervision in institutions are not assigned guardians. The Institution is responsible for fulfilling the duties of a guardian. Institutions have the right to temporarily transfer incapacitated citizens to the families of citizens (during weekends or non-working holidays and in other cases provided for by current legislation). Temporary transfer of incapacitated citizens to the families of citizens is not a form of their placement and is carried out in the interests of incompetent citizens in order to improve the quality of their life, the most complete satisfaction of their vital, emotional, psychological needs, ensuring the most complete socio-psychological adaptation to life outside the Institution, organization of recreation and leisure. The temporary transfer of incapacitated citizens to the families of citizens does not terminate the rights and obligations of the Institution to provide social services to incompetent citizens, as well as to protect their rights and legitimate interests. The period of temporary stay of an incapacitated citizen in the citizen’s family cannot exceed one month. In the presence of documented exceptional circumstances (going on vacation within the territory of the Russian Federation for more than one month, undergoing a course of treatment and other cases provided for by current legislation), the period of temporary stay of an incapacitated citizen in the citizen’s family may be increased with the written consent of the guardianship and trusteeship authority the location of the Institution, if such an increase in the period does not violate the rights and legitimate interests of the incapacitated citizen and is aimed at realizing his vital interests. In this case, the continuous period of temporary stay of an incapacitated citizen in the citizen’s family cannot exceed three months and no more than once during a calendar year. The duration, periods and specific terms (within a calendar year) of the stay of an incapacitated citizen in the citizen’s family are determined by the Institution, in agreement with the citizen, taking into account the continuity of the processes of education, treatment or rehabilitation (social, medical, psychological, pedagogical) of the incompetent citizen. When making a decision on the temporary transfer of an incapacitated citizen to the citizen’s family, determining the duration of the periods and terms of his stay in the family, the wishes of the incapacitated citizen himself are taken into account, based on the conclusion of the doctor of the Institution on the possibility of leaving. Identification of the wishes of an incompetent citizen in the form of a written survey is carried out, taking into account his capabilities, by an employee of the social service of the Institution in an environment that excludes the influence of interested parties on the incompetent citizen. The result of the survey is recorded by the specified employee and stored in the personal file of the incapacitated citizen. The wishes of an incapacitated citizen can be written by him personally. Temporary transfer of incapacitated citizens may be carried out to the families of citizens, with the exception of: a) persons recognized by the court as incompetent or partially capable; b) persons removed from the duties of a guardian (trustee) for improper performance of the duties assigned to him by law; c) persons who have or have had a criminal record, are or have been subject to criminal prosecution (except for persons against whom criminal prosecution was terminated on rehabilitative grounds) for crimes against life and health, freedom, honor and dignity of the individual (with the exception of illegal placement in a psychiatric hospital , slander and insult), sexual integrity and sexual freedom of the individual, against family and minors, public health and public morality, against public safety, as well as persons who have an unexpunged or outstanding conviction for serious or especially serious crimes; d) persons with open infectious diseases or mental illnesses, patients with drug addiction, substance abuse, alcoholism; e) persons who do not have a permanent place of residence on the territory of the Russian Federation. A citizen who wishes to obtain a conclusion from the guardianship and trusteeship authority on the possibility of temporarily transferring an incapacitated citizen to his family submits to the guardianship and trusteeship authority at his place of residence a corresponding application for issuing a conclusion from the guardianship and trusteeship authority on the possibility of temporarily transferring an incompetent citizen to a family in the form The following documents are attached to the application: a) an identification document of a citizen of the Russian Federation (passport of a citizen of the Russian Federation) and its copy; b) a certificate from the internal affairs authorities confirming the absence of the circumstances specified in subparagraph “c” of paragraph 6 of these Methodological Recommendations; c) an extract from the house (apartment) register or other document containing information about adult and minor members of his family living with the citizen; d) a certificate from a medical and preventive institution stating that the citizen does not have the diseases specified in subparagraph “d” of paragraph 6 of these Methodological Recommendations, or a medical report in form 164/u-96 issued by a medical and preventive institution. The document specified in paragraph “b” is accepted by the guardianship and trusteeship authority within 1 year from the date of issue, the document specified in paragraph “d” - within 6 months from the date of issue. A citizen has the right to submit other documents confirming that he has the necessary knowledge and skills to provide incapacitated citizens with care and treatment, including documents on education, professional activity, and completion of training programs for candidates for guardians or trustees. The conclusion is valid for three years from the date of its signing. A citizen’s repeated appeal on the issue of issuing a conclusion is allowed after he has eliminated the reasons that served as the basis for refusing the temporary transfer. If, during a survey of a citizen’s living conditions, circumstances are identified that create or may create a threat to the life and health of an incompetent citizen, his physical and moral development, or violate or may violate his rights and interests protected by law, the guardianship and trusteeship authority has the right to additionally write in writing request from the citizen: a) copies of documents confirming the citizen’s right of use or ownership of the residential premises in which the incapacitated citizen will be temporarily located; b) a certificate from a medical treatment institution confirming that family members living with the citizen do not have open infectious diseases, mental disorders or behavioral disorders until the termination of dispensary observation. Instead of a certificate, family members of a citizen can submit a medical report in form 164/u-96, issued by a medical institution. These documents are accepted by the guardianship and trusteeship authority within 6 months from the date of their issue. If the residential premises at the citizen’s place of residence are not well-equipped in relation to the conditions of the relevant locality, or the presence of an incapacitated citizen in the specified residential premises poses a threat to his health or physical condition, the guardianship and trusteeship authority at the citizen’s place of residence has the right to issue a conclusion on the possibility of temporary transfer of the incapacitated person. citizen to citizen without staying in the specified residential premises. In this case, a citizen can: take an incapacitated citizen during the daytime in accordance with the daily routine of the Institution; to go with an incapacitated citizen on vacation (rehabilitation) with accommodation on the territory of sanatorium-resort treatment and recreation facilities, medical and recreational, physical education, sports and other purposes with presentation of a tourist voucher to the Institution; stay with an incapacitated citizen in a residential area that is not the citizen’s place of residence. If the residential premises in which an incapacitated citizen will be temporarily located is not the citizen’s place of residence, the guardianship and trusteeship authority at the citizen’s place of residence sends it to the guardianship and trusteeship authority at the citizen’s place of residence or issues a request to the citizen to draw up an act at his place of residence. stay.

List of required documents

Additionally, the citizen provides:

• passport;
• autobiography;
• certificate and reference from the place of work;
• Form 2-NDFL (other confirmation of income received for 6 months is possible);
• certificate of no criminal record.

and other documents for registration of guardianship at the request of the supervisory authority.

Sample application

The guardian must personally handwrite the guardianship application. Keep in mind that the guardianship authority may not have enough information that you have provided about yourself and it has the right to apply for information to the Ministry of Internal Affairs, provided that the data relates exclusively to the applicant’s ability to fulfill guardianship obligations to his ward.

You can find the application form for establishing guardianship not only at the stand of the guardianship authorities, but also on the Internet (download and fill out at home).

Guardianship of an incapacitated person: rights and responsibilities

Patronage

Patronage, being a type of guardianship, is issued only over a fully capable person who has limited capabilities due to age or health condition.

The trustee in this case acts as an assistant in everyday matters and when making transactions, but never makes decisions for his ward. All purchases and expenses for paying bills are agreed upon with the elderly ward. In the Civil Code, even the definition of a trustee is simple and clear - an assistant.

A guardian is appointed regardless of the will of the incapacitated person, but in his interests, and patronage is based on the ward’s full approval of the assistant’s candidacy. If the relationship in tandem does not work out, then patronage of the elderly person is terminated at the first request of the person in need of help.

Guardianship services monitor the work of assistants, the execution of trust management agreements or other agreements concluded with the ward.

Conditions of patronage

Any competent adult citizen can become a patronage assistant. The exception is social workers, for whom service responsibilities are a professional activity. Guardianship services will require a number of documents, including those confirming the absence of a criminal record and the presence of chronic diseases that prevent the registration of guardianship.

Patronage can be free of charge, for example, if it is carried out by a close relative, or it can be on a contractual (paid) basis, regardless of whether the relative or a third party began to look after the citizen.

Typically, a pensioner in need of help pays for the services of his assistant from his monthly pension. But there are cases when the payment for care is borne by the social body in case of insolvency of the elderly person.

How to apply for patronage

The basis for registration of patronage is the application of an elderly person to appoint an assistant or the identification of such a needy pensioner by the guardianship authorities. Within a month, government services must find a trustee and complete all the necessary documents.

Responsibilities of a Guardian

Along with guardianship of a legally capable person, the trustee becomes the owner of new rights and responsibilities.

The responsibilities of a guardian of an incapacitated citizen are conventionally divided into categories - and this equally applies to the rights:

1. representing the interests of the ward,
2. taking care of him.

Representative functions come down to representing the ward in a variety of instances, in front of relatives and other people, carrying out transactions in his interests, and caring for the ward. The responsibility of the guardian for the actions of the incapacitated person is also provided.

Taking care of the ward and acting in the interests of the ward, the guardian must create favorable conditions for his life and health, manage his income in the interests of the ward, and promptly contact a medical institution if medical care is required.

Restrictions that exist on the disposal of the ward’s property

When taking care of property, the guardian must be aware that there will be situations in his guardianship related not only to the maintenance of the things of the incapacitated ward, but also to their disposal (participate in transactions of various kinds)

But the trustee has no right to use the property and/or finances of the ward for personal gain. His actions must be performed solely in the interests of the ward.

The guardianship authority asks the person who has taken on guardianship of the incapacitated adult to provide detailed information about the costs. The report of the guardian of an incompetent adult in 2018 allows the supervisory authority to verify the loyalty of the relationship between the guardian and his ward. Annual reporting is an important responsibility of the guardian.

The concepts of full, partial legal capacity and incapacity are on the same level and are aimed at assigning certain rights and responsibilities to a person, as a citizen.

Due to illness, reaching a particular age, or mental disorder, a person may lose the ability to understand the meaning of his actions. At such a moment in his life or throughout it, a person ceases to control his actions and, accordingly, may be declared incompetent or partially capable.

Types of disability

Today, there are several types of incapacity:

• age-related incapacity;

Age-related incapacity occurs before the age of majority, namely the age of eighteen and in very old age, when, as a result of age-related changes, a person ceases to control his actions and loses his legal capacity. If in the first case, incapacity arises from the condition of being in a certain age category, then in the second case, the procedure for recognizing incapacity will be the same as in the case of a mental disorder or disease.

• incapacity due to mental disorder;

As the name suggests, it arises as a result of a citizen’s loss of the ability to adequately perceive reality and be responsible for their actions and deeds.

• Limitation of legal capacity;

Restrictions on legal capacity limit a number of rights and obligations of a citizen, primarily to enter into transactions for the disposal of property. The limitation of a citizen’s legal capacity is expressed in the fact that, in accordance with a court decision, guardianship is established over him and he can make transactions to dispose of property, as well as receive wages, pensions or other types of income and dispose of them only with the consent of the trustee. He has the right to independently carry out only small everyday transactions (Clause 1 of Article 30 of the Civil Code of the Russian Federation). However, such a citizen independently bears property liability for transactions made by him or for damage caused.

Grounds and procedure for declaring a citizen incompetent

The procedure and grounds for declaring a citizen incompetent are enshrined in civil procedural legislation. In Art. 29 of the Civil Code of the Russian Federation states that only a court can recognize a citizen as incompetent. That is, in order to declare a citizen incompetent, the court must establish the presence of legal and medical criteria in combination.

Medical criterion is the presence of a mental disorder or disease in a citizen.

The legal criterion is the inability to direct one’s actions (volitional aspect) or the inability to understand the meaning of one’s actions (intellectual aspect).

According to Art. 29 of the Civil Code of the Russian Federation, not every mental disorder can be the basis for a citizen’s loss of legal capacity, but only one that does not allow him to direct his actions and realize their meaning and consequences. The Law “On Psychiatric Care and Guarantees of the Rights of Citizens in the Provision of It” states that merely the presence of a citizen in a psychoneurological institution for inpatient or dispensary observation cannot lead to his loss of legal capacity. Namely, based on diagnosis alone, it cannot be said that a citizen is incompetent.

The Civil Procedure Code of the Russian Federation contains articles devoted to the procedure for declaring a citizen incompetent (281-286).

Art. 281 of the Code of Civil Procedure of the Russian Federation states that the following have the right to submit an application to the court to recognize a citizen as having limited legal capacity or completely incapacitated:

• family members, psychoneurological or psychiatric institutions, guardianship and trusteeship authorities (in cases of a citizen’s abuse of narcotic drugs or alcoholic beverages - limitation of legal capacity);
• close relatives, family members, guardianship and trusteeship authorities, psychoneurological or psychiatric institutions (mental disorder of a citizen - recognition as incompetent).

The application is submitted to the court, either at the citizen’s place of residence, or at the place of the psychiatric or psychoneurological institution in which he is being treated. In order to prepare for the case, the judge, having strong evidence of a citizen’s mental disorder, is obliged to order a forensic psychiatric examination to determine the mental state of the latter (Article 283 of the Code of Civil Procedure of the Russian Federation). Failure of a citizen to undergo this examination entails a court decision to compulsorily send the citizen for a forensic psychiatric examination.

When considering a case on declaring a citizen incompetent and making a decision, the court must proceed from the following facts:

• presence of a mental disorder;
• a causal connection between a citizen’s lack of understanding of the meaning of his actions, the inability to manage them and mental disorder;
• facts confirming that the citizen is not able to direct his actions and cannot understand their meaning;
• when a citizen reaches the age established by law, when the question of recognizing him as incompetent becomes a question;
• other circumstances.

Evidence required to declare a citizen incompetent:

• conclusion of a forensic psychiatric examination;
• certificates confirming that the citizen is registered at a psychiatric dispensary;
• certificates from a medical institution;
• certificates of disability;
• evidence of a citizen’s lack of ability to direct his actions and understand their significance (materials from investigative bodies, witness testimony, conclusions of previously conducted forensic psychiatric examinations, etc.);
• other evidence.

The Civil Procedure Code implies a presumption of legal capacity of a person, which means that until the corresponding court decision is made and until it comes into force, any person is recognized as legally competent. Therefore, the applicant has the responsibility to prove the existence of circumstances that indicate the incapacity of the citizen concerned. Persons interested in proving the legal capacity of a citizen and objecting to the stated requirement may present in court evidence of the absence of grounds for declaring the person incompetent.

Recognition of a citizen as legally incompetent requires the presence of guardianship and trusteeship authorities, as well as a prosecutor, at the court hearing. The participation of guardianship and trusteeship authorities is due to the need to appoint a guardian or trustee for an incapacitated person. Each of these participants gives its own conclusion when considering cases of this category.

If a citizen recovers, the Code of Civil Procedure of the Russian Federation provides for the procedure for recognizing him as legally competent. This requires a sustainable improvement in the mental state of the person, a conclusion from a forensic psychiatric examination about changes in the mental state of the citizen.

Appointment of a guardian for an incapacitated person

From the moment a court decision declaring a person incompetent comes into legal force, the court is obliged to notify the guardianship and trusteeship authority about this within three days. This rule is followed to establish guardianship over an incompetent person (Article 34 of the Civil Code of the Russian Federation). A guardian is appointed by the relevant authority at the place of registration of the incapacitated citizen.

According to current legislation, the guardianship and trusteeship authority establishes preliminary guardianship for a period of six months within three days. After this time, after the guardian has collected a complete package of documents to establish guardianship in a general manner over an incompetent citizen, the guardianship and trusteeship authority establishes guardianship in a general manner.

If a guardian is not appointed to an incapacitated person within the allotted time, the fulfillment of the duties of the first is assigned to the guardianship and trusteeship body. This provision is aimed at eliminating cases when a guardian is not appointed to an incapacitated citizen for various reasons. As a rule, in such a case, the incompetent citizen is placed in a psychiatric hospital.

Only an adult capable citizen who has given his consent can act as a guardian. A prerequisite for the appointment of a guardian is to take into account his personal and moral qualities, the existing personal relationship between the person in need of guardianship and the intended guardian, as well as the ability to perform guardianship duties. If an incapacitated citizen can express his will, then his wishes are taken into account when appointing a guardian.

Interested persons may challenge the appointment of a guardian over an incapacitated person in court.

The guardians of incompetent citizens who are undergoing treatment in relevant institutions or in institutions for social protection of the population are these institutions (Article 35 of the Civil Code of the Russian Federation). According to Art. 39 of the Civil Code of the Russian Federation, the guardianship and trusteeship authority releases the previously appointed guardian from guardianship duties when placing an incapacitated person in these institutions, provided that this does not contradict the interests of the ward. Before the introduction of this norm, a lot of problems arose associated with the loss of an active connection between the ward and the guardian, who for a long time had been protecting the legal rights and interests of the incapacitated person.

The duties of the guardianship and trusteeship authorities after the appointment of a guardian for an incapacitated citizen include notification of this to the tax authorities, the Federal State Budgetary Institution "Federal Cadastral Chamber of the Federal Service for State Registration, Cadastre and Cartography" about the transfer of the property of the incapacitated person to the trust management of the guardian.

Responsibilities of a guardian of an incapacitated citizen

• protection of the rights and interests of the ward;

Applies to relationships with any persons, courts, and so on. For which the guardian does not require special authority (Article 31 of the Civil Code of the Russian Federation, paragraph 5 of Article 37 of the Civil Procedure Code of the Russian Federation). When a guardian seeks help from a lawyer or another person chosen by him as a representative, two representatives may participate in court: the guardian is a legal representative and a lawyer, and the lawyer is an elected representative.

• making transactions on behalf and in the interests of the ward, with the prior permission of the guardianship and trusteeship authority (Article 32 of the Civil Code of the Russian Federation);
• giving consent to the processing, storage, use and accumulation of data about the ward (Clause 6, Article 9 of the Federal Law “On Personal Data”);
• care for the maintenance of the ward (Article 35 of the Civil Code of the Russian Federation);

Applies to care and support, treatment, implementation of an individual rehabilitation program for the incompetent, protection of the interests and rights of the ward. Namely:

· regulation of the implementation of dispensary observation in relation to the ward and the fulfillment of the doctor’s orders by the ward, placement of the ward for inpatient treatment if such a need arises;

• visiting a patient in hospital;
• safety of the ward’s housing;
• monitoring the actions of the ward so that he does not violate other people’s interests and rights;
• introducing the ward to work;

As statistics show, proper implementation of guardianship can significantly speed up the rehabilitation of the patient.

If the grounds for which the citizen was declared incompetent are eliminated, the guardian must file a petition to recognize his ward as legally competent.

All income of the ward is spent by the guardian only in the interests of the ward. The guardian, without the consent of the guardianship and trusteeship authority, does not have the right to enter into transactions that entail a decrease in the property of the ward (Article 37 of the Civil Code of the Russian Federation). According to Art. 575 of the Civil Code of the Russian Federation, a guardian does not have the right to make gift transactions on behalf of an incapacitated citizen, excluding ordinary gifts worth up to five times the minimum wage.

Resolution No. 927 of November 17, 2010 “On certain issues of guardianship and trusteeship in relation to adult incompetent or partially incompetent citizens” provides for the guardian’s reporting on the exercise of his powers, which has a positive impact on the protection of the interests and rights of incompetent citizens.

Guardianship and trusteeship authorities are called upon to supervise the activities of guardians (Clause 3, Article 34 of the Civil Code of the Russian Federation). The competence of the guardianship and trusteeship body includes the release of a guardian from the duties of a guardian.

Exemption from the performance of guardianship duties over an incapacitated citizen is carried out:

• at the personal request of the guardian, if there are good reasons;
• by a court decision when the ward is recognized as legally competent.

Removal from the performance of guardianship duties over an incapacitated citizen is carried out:

• by decision of the guardianship and trusteeship authority in case of improper performance of the duties assigned to the guardian (using guardianship for personal gain, leaving the ward without the necessary help or without supervision).

For the ward's housing

The one who is entrusted by law with guardianship over an incapacitated person cannot lay claim to the property of the ward, nor can he use it in his own interests. Thus, the law does not provide for the right of a guardian to the living space of a legally incompetent person under his guardianship, unless this is stipulated in the testamentary document.

Right to inheritance

A guardian who is not related by blood to the ward, and therefore does not belong to any of the seven orders, has no right to claim inheritance by law. And with the registration of guardianship, he does not acquire inheritance rights.

But if there is a will in which he is named among the heirs, and this document is drawn up according to all the rules before the testator is declared incompetent, the trustee can inherit his share after the death of the ward.

Cohabitation

The guardian and his ward must live together, only if the ward is a minor. This is the case under civil law. As for incapacitated adults, the guardian should not live together, but separation is possible. The guardian, in this case, living separately, only visits the sick person, devoting to him as much time as his guardianship duties require.

By the way, if the trustee changes his place of residence, he is obliged to notify the guardianship authority.

When incapacity occurs and guardianship is required under the 2021 law

The concept of incapacity and the procedure for establishing guardianship are established by Federal Law No. 48 of April 24, 2008. Until the age of 14, a child is endowed with this status by virtue of the law. His parents exercise authority for him when performing legally significant actions. At the age of 14, limited legal capacity begins, when a person has the right to carry out small household transactions independently, and large ones - with the permission of a legal representative, parent, guardian or trustee in writing. However, the consent of such a teenager is also required. In exceptional cases, full legal capacity begins at the age of 14 when such a fact is established in court upon entering into an official marriage or engaging in labor or entrepreneurial activity. After 18 years of age, a citizen receives the status of incompetent under the following circumstances:

• old age - more than 80 years, at the same time there may be mental or physical disabilities that do not allow the citizen to control his actions, which is established by a court decision with the appointment of a legal representative;
• mental disorders, when a citizen cannot adequately assess the consequences of his actions, for example, in case of schizophrenia, full legal capacity may be limited according to a medical report, but the court does not need to establish the fact;
• if there are physical disabilities that cause a person’s inability to participate in the social life of society due to difficulties in moving - visiting stores, going out, etc., with the consent of the citizen himself, in such situations guardianship may be established in the interests of the incapacitated person.

The legal age difference between the guardian and the person under guardianship must be at least 16 years for the adoption of documents and approval of the decision.

Benefits and preferences for a guardian

There are benefits provided for guardianship of an incapacitated person. The guardian can apply for an additional payment to the ward’s pension in the amount of 1,200 rubles at the Pension Fund of Russia branch by presenting:

• your personal statement;
• a certificate that this person does not receive pension payments;
• confirmation from the employment center that he is not looking for work and is not receiving unemployment benefits;
• passports and work books (if any) of the guardian and his ward;
• guardianship decision.

Some benefits apply to a guardian and his ward. When traveling together, they can both travel for free on public transport. Notary services cost the guardian 50% of the cost. They are entitled to a 50% discount on utility bills. There is also a 50% discount on tax for vehicles (up to 150 hp).

Rights and responsibilities of a trustee

Let's consider what the appointment of guardianship provides. Powers of guardians and trustees of incapacitated citizens:

• disposal of property with the consent of the guardianship department (renting, transferring funds to accounts in the name of the ward, ensuring safety);
• management of funds in accounts and in a nominal account (the ward’s pension goes to a nominal account opened in the name of the guardian);
• protection of the legal interests of the ward in government agencies and the court;
• care, help in everyday life, care;
• fulfillment of the ward’s financial obligations on his behalf (loan payment, tax payment);
• making transactions on behalf of the ward both in relation to property and household matters.

Reasons for ending guardianship

All activities of guardians are under the supervision of guardianship authorities. The rights and especially the duties of a guardian over an incapacitated person must be strictly observed. Otherwise, those guardianship authorities release the trustee from his duties.

In order for a guardian to be removed from the performance of guardianship duties over an adult incapacitated citizen, the following grounds must exist:

1. personal desire of the guardian with reference to sufficiently valid circumstances;
2. decision of the supervisory body in case of improper performance of duties by those to whom they are assigned (guardianship is used for selfish purposes, the ward is left without supervision and the necessary assistance);
3. a court decision recognizing the ward as legally competent.

The latter case deserves special mention. It may turn out that the physical and/or mental state of the person under care will improve significantly. And then the question of recognizing partial or full legal capacity may arise. But such a procedure can only be implemented in court. And the term of guardianship may end.

Additional Information

Guardianship of a mentally ill person comes with great responsibility. Unfortunately, government support measures currently cannot be called satisfactory. The same cannot be said about the strict supervision of guardians.

1. A person officially performing guardianship functions does not have the right to inherit the property of the ward. After his death, the property will go to his legal heirs or the state.
2. Transactions with the property of an incapacitated person may be challenged in court at the request of other interested parties.

We describe typical ways to resolve legal issues, but each case is unique and requires individual legal assistance.

To quickly resolve your problem, we recommend contacting qualified lawyers on our website.

Consequences of release from guardianship

The citizen must be aware of a number of possible consequences due to his refusal to serve as a guardian.

1. Within three days, the applicant must submit a report on his activities. It must describe in detail the transactions that were made with the property of a minor or incompetent person, supporting the information with receipts and contracts.
2. If another guardian is not found for the ward in the near future, he will be sent to a boarding school or another government institution.
3. If, upon inspection of the applicant’s activities, violations are discovered, he will be held accountable.
4. The possibility of re-establishing guardianship over the same person is practically reduced to zero, because the duties of the teacher will be performed by another person.

Theoretically, in the future, the applicant can again choose a ward, but the citizen should be prepared for increased attention to him from local authorities.

The guardian has the right to voluntarily resign from his duties. To do this, an application and a passport are submitted to the local authority. A representative of the guardianship department considers the possibility of releasing a citizen from guardianship and prepares a corresponding draft resolution. The final decision on the issue is made by the head of the local administration. Acts and actions of government authorities are subject to appeal. In the future, the applicant has the right to become a guardian again.

Application procedure

The guardian must bring to the MFC:

• statement;
• passport or other identification document.

An employee of the Multifunctional Center refuses to accept documents if:

• a valid passport or other personal identification has not been provided;
• the application lacks the required information;
• documents were submitted with corrections, damage or other serious deficiencies that impede reading and understanding of what is presented.

If the specified problems with business papers do not arise, an MFC employee establishes the identity of the applicant, scans the submitted documents, certifies them with an electronic signature and sends them to the local administration. The applicant is issued a receipt for documents acceptance.

Sale of an apartment with a share of an incapacitated person

Hello, my sister and I each have 1/2 share in the apartment.

She is incapacitated, I am her guardian.

The apartment is in a residential area, I want to sell the apartment and buy one closer to the center so that my sister has more opportunities for a full life.

I know that the consent of the guardianship authorities is required.

Will it be necessary to provide my sister with equivalent housing before selling the apartment? What should I do if I don’t have this option?

inclusion of a minor as a co-owner when purchasing a new home; purchasing new housing only for a minor; placing the money proceeds from the sale of the value of the minor’s share into his bank account; receipt of money proceeds from the sale of the value of the minor's share by a parent or guardian under certain conditions; refusal.

Can a disabled person live alone?

The conditions for recognizing a patient as disabled are: a) persistent disorders of body functions; b) limitation of life activity (complete or partial loss of the ability to self-care, communicate, control behavior, study, work, etc.); c) the need for social protection, including rehabilitation.

Persons with disability groups I-III may be recognized as incompetent. Medical and social examination determines the ability of a disabled person to work in specially created conditions.

My father has full ownership of an apartment where, besides him, his granddaughter (my daughter) also has permanent registration.

In the winter, my father had a stroke, the consequences were dementia, now he is in a psychiatric clinic, he was issued the 1st group of disability, and we are waiting for a trial to establish incapacity.

And here the question of guardianship arises in full force. I am not eager, and I cannot, for various reasons, to be his guardian, but I want to send him to a state psycho-neurological boarding school.

Law Club Conference

Can you tell me the order of actions and in general how correct the actions are?

Our grandfather died, our grandmother (mother’s mother) remained, my mother quit and went to live with her, during this time she filed for incapacity, my grandmother is the heiress of the property, and is now trying to obtain guardianship, BUT in all instances everyone is “pulling the blanket on themselves,” some say that it is necessary to formalize guardianship at the place of residence of the guardian, others say that you must be registered with her in order to formalize guardianship, others say something else.

In what order can an incompetent citizen be discharged from a psychoneurological boarding school?

Federal Law of April 6, 2011

No. 67-FZ changed the procedure for discharging incapacitated citizens from psychoneurological institutions for social security, as provided for in Article 44 of the Law on Psychiatric Care. 1) upon a personal application of a person declared incompetent, in the presence of a conclusion from a medical commission with the participation of a psychiatrist that, for health reasons, such a person is able to live independently (paragraph two, part 2, article 44)

Who told you that you could take sole possession of the apartment of the person under your care? You will even have to register with the permission of the guardianship authority, but forget about selling the apartment.

You only have the hassle of caring for a schizophrenic and nothing more. After a person is declared incompetent, he is assigned a guardian from among his relatives who have expressed such a desire, or an outsider.

Guardianship of an elderly person

An elderly person over 80 years of age may need additional care, even if he does not have any mental disorders. In this case, patronage or partial guardianship is issued. The role of an assistant can be either a relative of an elderly person or any other person. However, the list of assistants does not include Social Security employees who periodically help an elderly citizen with housework.

Even if a person is a disabled person of group 1, patronage is established over him, and not full guardianship.

To establish patronage, you need a mutual desire: both the elderly person and his future assistant. If both parties agree, an agreement is drawn up, which specifies the rights and responsibilities of the assistant, as well as the conditions under which assistance will be provided to the elderly person.

Apartment under control, or Surprise from a mental institution

If the incapacitated person left the apartment where he had a share in the property, then everything is clear: this share remains with him. However, if he left the apartment, which at that time was not privatized, then he retains the right of residence if his relatives continue to live there. Case from practice

“There was a case when a minor left the PNI and was deregistered,” says the general director of the Consulting Center for Shared Construction and Real Estate.”

Please help with advice! (Whether to formalize incapacity, guardianship)

Mom needs to register for disability.

It is necessary to deprive one of incapacity, this is done through the court, it took me 7 months to do everything about everything.

No one will give you anything early.

There is no guarantee that mom didn’t sign anything, it’s with her sister. it can be anything, from a trust to a deed of gift for your share. Now you should think about having your mother give you her share, and so that only you are the owner of the apartment.