Rules and procedure for registering a refusal of guardianship in Russia

Guardianship is both a right and a burden. It is not enough to ensure the protection of the rights and interests of your ward; you also have to regularly report to regulatory authorities on the performance of guardianship duties.

All property transactions that the guardian has carried out in relation to the property of the ward under the constant supervision of the guardianship authority.

A citizen makes a decision on guardianship voluntarily. He can just as well refuse it. The registration procedure is quite simple. If you know all the intricacies of the legal consequences of these acts.

We will talk more about how to waive child custody.

Legislative regulation of the issue

Guardianship is the placement of children who are left without parental care.

The law does not strictly dictate the reasons for termination of guardianship and trusteeship of children. So the motives may be purely personal. And the guardian is not obliged to justify his intention.

Important! It is better to include in the application the reasons and reasons for the refusal.

Among the frequently cited reasons are force majeure disagreements that have arisen between the guardian and the ward, possibly between members of their families. The interests of the guardian and the ward contradict each other. The fulfillment of the duties assigned to him became impossible due to illness or moving to another area, which the sponsored person opposes. In the end, the citizen does not want to fulfill his duties for his own reasons.

The ward himself can express his desire to change the guardian. And also, for my own reasons:

• mutual hostility and, as a consequence, contradictions and conflicts;
• reluctance to live together;
• violation of the rights of the ward and others.

Revocation of guardianship by the guardianship department

An alternative option for terminating guardianship is the release of the guardian at the initiative of the guardianship department. This procedure is called removal.

It is implemented by the guardianship department as a means of protecting the ward from the unlawful actions of the guardian. That is, if there is strong evidence that the rights of the pupil are being grossly violated, the guardianship department has the right to remove the powers of the guardian unilaterally.

Main reasons for removal:

• committing a crime against a ward;
• committing a crime against another citizen with punishment in the form of actual imprisonment;
• violation of children's rights;
• abuse of rights in relation to a minor or incompetent pupil.

Important! A person removed from acting as a guardian must be entered into a regional data bank. As a result, he is deprived of the right to further perform the duties of a guardian, trustee, or adoptive parent.

Can a guardian dispose of the property of the ward and how to do this?

Paid and gratuitous guardianship - similarities and differences

Features of termination of obligations

A trustee who intends to withdraw from obligations to the person under guardianship submits an application to the guardianship authority in which the guardianship was formalized. His application will be considered. And the result will be a new document - an act on the release of a citizen from guardianship functions.

Over minors

Taking guardianship of a young child means facing a lot of specific features. The reason for this is the special nature of state support for children without parental care.

Refusal of guardianship over a minor is also associated with specific legal consequences.

In this case, the guardianship authority not only draws up an act, but also makes a decision on the subsequent placement of the child: send it to another family or an orphanage.

Now the guardian has no right to count on:

1. allowance allocated for the maintenance of the ward,
2. compensation payments for a child’s disability,
3. remuneration for performing guardianship functions.

Important! Guardianship provides for the placement of not only children, but also adults: the elderly, the sick who cannot cope with everyday responsibilities on their own, citizens recognized by the court as incompetent or partially capable.

Over incompetent citizens

Refusal of guardianship over an incompetent person recognized as incompetent is formalized in accordance with the general procedure.

And a person released from guardianship duties is no longer a legal representative of his sponsored person and has no right to enter into transactions on his behalf.

The previously concluded transactions will now be executed by the new guardian, and new agreements will be concluded by him, and in his absence, by the guardianship authority.

Above the elderly

The consequences described above apply to this case as well.

And if the elderly ward is already 80 years old, and his guardian regularly received 1,200 rubles every month, with the refusal of guardianship and the signing of the corresponding act, payments to him stop.

How to refuse guardianship of an incapacitated person?

The law also provides for the possibility of refusing guardianship over an incompetent person. To do this, you must contact the guardianship department at the place of registration.

The main reasons for refusing guardianship over an incapacitated person are similar to the grounds for canceling guardianship over a minor.

Example . Citizen V. was the guardian of an incapacitated grandmother. The woman could not get out of bed. The girl studied and devoted her free time to caring for her grandmother. The granddaughter was registered as a guardian. After completing her studies, the girl got a job in another city. Because of the move, she had to give up custody of her grandmother. The woman was placed in a specialized boarding school.

If the ward has not been deprived of legal capacity, but only limited, then guardianship is appointed . The procedure for refusing to perform the duties of a trustee is identical to releasing from guardianship.

Procedure for registration of refusal

A number of actions will have to be taken if the guardian refuses their obligations:

• Contact the guardianship authority;
• Collect a package of documents;
• Prepare the guardian's report and submit it along with the documentation;
• Await consideration of the application;
• Sign the corresponding act.

Now let's talk about the most important points in more detail.

Required documents

Personal request. It must contain information about the guardian, a link to the document by which guardianship was established, the request itself, and, if desired, justification. And it is necessary to refer to Art. 29 Federal Law No. 48 dated August 24, 2008, the document must be signed.

Along with this application you must provide:

1. applicant's passport,
2. document establishing guardianship,
3. guardian report,
4. other papers at the request of the guardianship officer.

You will have to prepare not only originals, but also copies. Moreover, it is unacceptable to apply by proxy, only personal presence in the guardianship authorities.

If a ward makes such a request, one application is sufficient.

Timing and result of consideration

The guardian's application is considered no longer than 3 days. The appeal of his ward will wait longer for a decision. This is because, according to this application, the guardianship authority, first of all, is obliged to conduct an unscheduled inspection, document its result in the form of an act within 10 days, and only after that another act is signed, releasing the guardian from his duties.

Cancellation of guardianship by court decision

If the rights and obligations of a guardian are canceled in accordance with a court order, then this is considered a forced, rather than voluntary, termination of guardianship. Employees of the guardianship authorities can initiate legal proceedings if it is found that the guardian is arbitrarily wasting the property of the ward, causing him material or moral harm through his actions.

Expert commentary

Kamensky Yuri

Lawyer

If authorized persons determine that the guardian’s actions contain signs of an administrative offense or crime, they will need to immediately contact law enforcement agencies.

Judicial order

The legislation does not say anything about release from guardianship through the court. This decision is the prerogative of the guardianship authorities.

Still, judicial practice has its place. If parents are deprived of their parental rights, the guardianship authority, in accordance with Art. 70 of the RF IC, applies to the court with a corresponding petition.

If the guardian does not agree with the decision of the guardianship authority to deprive him of his guardianship powers, he has the right to seek protection from the court. And the supervisory authority will act as a defendant in court.

If the legal capacity of the ward is restored, then in this situation, a judicial procedure will be required to terminate the guardianship.

Is it possible to become a guardian after voluntary refusal?

Before answering this question, we suggest that you familiarize yourself with the situation.

Case study:

Citizen R. quarreled with her grandson, for whom she acted as guardian. To punish the ward, the woman wrote a refusal to the guardianship department. The child was placed in an orphanage. At this time, family B contacted the guardianship department. They collected documents and took the boy. Although the grandmother tried to prevent the registration of guardianship and take her grandson back, department specialists regarded her action as unreliable. The child was transferred to a family of strangers.

The above example illustrates a very popular situation. The citizen succumbs to momentary emotions and issues a refusal. However, fixing the situation is not so easy.

The release of the guardian does not prohibit the re-adoption of children into the family. But it is almost impossible to return the same child.

The guardianship department will not allow the child to be subjected to emotional shock again. Most likely, the minor’s right to family upbringing will be realized in another family.

Thus, after removal, you can no longer become a guardian. If released, it is possible, but most likely the same child will not be given into the family.

Consequences

Provisions of Art. 30 of the Federal Law “On Guardianship and Trusteeship” indicate the following consequences in the event of termination of guardianship:

• a person who has learned about his release from guardianship affairs is obliged to draw up a guardianship report within three days, showing in detail the property status of his ward, and provide it to the supervisory authority;
• violations of the law by the guardian identified during an unscheduled inspection serve as the basis for bringing to administrative criminal or other liability. Guardianship officers have a maximum of two weeks to prepare a statement of claim;
• the guardianship agreement is terminated.

Freedom of guardianship is an important principle of social organization. You can relinquish guardianship at any time. The intentions of the guardian or his ward to terminate the contractual relationship must be formalized accordingly. And you can appeal your disagreement with the conclusion of the guardianship authority in court.

But, before you decide to take such a step, weigh all the pros and cons, because as a result of the guardian’s refusal, the consequences for his ward are not the most rosy. It’s good if there is another person who will take the refusenik under his protection. But more often he is placed in a boarding school or in a specialized educational or medical institution.

Algorithm of actions

The procedure for abandoning a student is formalized administratively. The applicant must contact the guardianship department at the place of residence.

Important! Only the local government body at the location of the child’s personal file can cancel guardianship.

Procedure:

1. Contact the guardianship department.
2. Submitting an application.
3. Transfer of the child, his documents and property.
4. Obtaining a resolution.
5. Submitting a report.

Expert opinion

Stanislav Evseev

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

A citizen has the right to refuse to terminate guardianship and withdraw the application at any stage before the decision is issued. After the official termination of their powers, specialists rarely return children to their guardian family. Even if the foster parent and the pupil are reconciled, the guardianship commission will not allow the ward to be returned to the family again in order to avoid repeated trauma.

Contacting the guardianship department

The return of a child from a foster family has a negative impact on the statistics of the guardianship department. Therefore, specialists will try to prevent returns.

In order to preserve the custodial family, crisis support will be offered. If the main reason for age is a conflict with the ward based on child-parent relationships, then support will be required.

Important! The guardian has the right to refuse crisis support.

The support procedure includes drawing up a rehabilitation plan for the foster family. A specialist from the guardianship department directs the guardian and ward to the support center.

The center’s specialists (psychologists, lawyers, doctors) will study the situation and correct family relationships. The work is carried out not only with the ward, but also with the guardian.

Submitting an application

The form of the application for refusal to perform the duties of a guardian is not established by law. Even regional legislators do not regulate this issue. Therefore, the application is drawn up in free form.

The document must contain the following information:

• position and full name head of a local government body;
• applicant details;
• document's name;
• information about the appointment of guardianship;
• child data;
• reasons for refusing education;
• request for release from duties;
• date and signature.

Sample application for release from guardianship duties

Delivery of documents and property of a minor

The guardian must prepare at the time of making the final decision

If, at the time of transfer of property, it turns out that he has suffered harm, the guardianship department has the right to recover funds to compensate for the damage from the substitute parent.

If serious damage to children's property is detected, the citizen may be held accountable.

Obtaining a decree to revoke guardianship

Preparing a resolution requires some time. On average, it takes from 3 to 14 days. During this period, the ward can live in the family of a substitute parent or be in a rehabilitation center.

From the moment the decision is received, mutual rights and obligations between the guardian and the ward cease.

Submitting a report

Within 3 days from the receipt of the resolution, the citizen must submit a report on the use of the ward’s property. The document must contain information about the funds received to support the child since the beginning of the year (allowance, alimony, inheritance). It is also necessary to include all expenses.

The report must contain information about the ward’s property and its safety. In addition, you must provide information about paying taxes on children's property.

The report is accompanied by statements from banking organizations from all the child’s accounts. Including from the nominal account of the ward.

Reasons and grounds for refusal of guardianship

The law does not provide an exact list of reasons why a guardian can leave his obligations. All cases are individual, for example, in connection with the relocation of one of the parties, an illness as a result of which someone was placed in the hospital for a long time, etc. Sometimes a guardian simply does not want to continue caring for their ward or they have serious disagreements.

There are also frequent cases when trustees do not want to file the mountain of mandatory reports that the state requires. As you know, guardians must constantly submit a report on the amounts that were spent from the ward’s funds. The only thing for which they do not require documentation is for average food and basic necessities and household needs.

Proper written reporting is required for all other expenses. It should be borne in mind that even incorrect registration can turn out to be unfavorable for the guardian, and you will have to bear responsibility for this. The guardian must report to the state:

• on the income he received from managing the property of the ward;
• for expenses that were incurred from funds.

In each case, checks, receipts and other payment documents are provided. Often they simply do not want to bother with such a large amount of reporting and voluntarily renounce guardianship.

Under what circumstances is it permissible?

Let's consider the options in which citizens can officially lose their legal rights to guardianship, these are:

• their death or the death of the wards themselves;
• the deadlines for the acts have expired - the official document legitimizing guardianship has expired; guardianship was previously appointed;
• complete removal or temporary release from the direct duties of a guardian;
• the citizen has reached the age of eighteen (in the relationship between the child and his legal parents).

It is important to remember: grounds for interrupting guardianship may also be in other cases when the ward acquires full civil capacity. This also applies to children who have not yet reached adulthood.

In life, inconsistencies may arise in the legal actions of guardians, as well as contradictions in relations with the ward and the trustee when:

• self-interest is pursued;
• the purpose of profit has been identified;
• the ward is left without the necessary supervision or adequate assistance;
• facts of non-compliance with contractual rules or the Federal Law of the Russian Federation are established, which violates the proper protection of property or improper disposal of real estate.

Guardianship concept

The regulatory framework for guardianship relations is Federal Law No. 48-FZ of April 24, 2008 “On guardianship and trusteeship.”
Let us list its most important provisions. Article 2 interprets guardianship as a form of family arrangement for minors, disabled or incompetent persons, established by the competent authorities for the upbringing and protection of the interests of the ward. As part of the status of a guardian, the person entrusted with the corresponding responsibilities is called upon to represent the interests of the ward without any additional supporting documents, except in cases expressly stated in the law.

Guardianship is carried out with the purpose of assisting a minor in the exercise of his rights, performance of duties, and protection from attacks by third parties. In relation to an adult ward, the trustee must give consent to him concluding large property transactions, spending earnings and other income in his interests.

Guardianship can be established over a minor child, and a teenager from 14 to 18 years old (up to 21 years old if he is studying full-time at a university) is taken under guardianship.

Articles 4-5 of the previously mentioned law define the tasks of the state in terms of regulating guardianship activities and the principles by which it is guided. Article 7 talks about the tasks of guardianship and trusteeship authorities, for example, the duty to protect the rights of citizens who need it, control over the safety of their property, and supervision of the activities of guardians.

Link to document: “On guardianship and trusteeship”

Types of guardianship

Guardianship can be established:

1. in the general order - then it is permanent and ends on the grounds provided for by law;
2. in a preliminary manner - involves temporary care for the ward until a solution to his problem is found in any of the ways permitted by law.

Permanent guardianship can be free or paid. Free guardianship is usually taken by close relatives of children left without parents, or elderly people who do not have children of their own. Paid guardianship is common among third parties who expect financial compensation for their efforts in raising other people's children or caring for the elderly or sick from the state.

Regulatory framework

The legislation regulating the issue consists of the following acts.

1. Civil Code. In paragraph 2 of Art. 39 of the Civil Code of the Russian Federation states the possibility of releasing a guardian from his duties forever or for a certain time. All it takes is his request.
2. Law No. 48-FZ. In paragraph 3 of Art. 29 of this act duplicates the right of a guardian to unsubscribe from his activities.
3. Family code. In paragraph 2 of Art. 153.2 specifies the grounds for termination of guardianship established in accordance with the procedure for concluding an agreement.
4. Rules for the activities of authorized bodies, approved by Resolution No. 423. This act contains the procedure for the actions of a government representative in the event of an application for refusal to care for a child or an incapacitated citizen. A specific algorithm of actions for territorial departments dealing with children can be prescribed in local regulations.

Guardianship ban

Here is a list of those who are prohibited from being guardians of children:

• deprived of parental rights;
• convicted under articles for causing harm to health or life, sexual integrity, kidnapping, as well as under serious and especially serious articles;
• who have not been trained to be appointed as a guardian;
• those in same-sex marriage or cohabitation (even if they are citizens of a state where such marriages are allowed);
• chronic alcoholics, substance abusers or drug addicts;
• former adoptive parents, guardians, if their guardianship or adoption was terminated.

Decree of the Government of the Russian Federation No. 117 of February 14, 2013 defines diseases that exclude guardianship: Diseases that exclude appointment as a guardian

• pulmonary tuberculosis of groups 1 and 2;
• untreated infection;
• cancer stages 3 and 4 or stages 1 and 2 if surgery was not performed;
• mental disorders;
• disability group 1.