Procedure for appointing preliminary guardianship of a minor child

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In addition to parents, the state is also responsible for providing minor children with normal conditions for growth and development. Especially in cases where a child for some reason is left without parents, their care and support. In such situations, direct assistance from the state is required to ensure the child’s right to a family. As soon as a child is left without parental care (in some cases even earlier), the guardianship and trusteeship authorities take care of him.

What does pre-custody mean?

A child left without parental care comes under the care of the state, which, in turn, transfers the child to another (foster) family for upbringing. Usually, until a guardian is appointed, the baby is in a medical or social institution, but there are situations when the transfer of the child into guardianship cannot be delayed. In such cases, the law allows the child to be placed under preliminary guardianship while a permanent substitute parent is approved.

Based on Art. 12 of Federal Law No. 48-FZ of April 24, 2008, preliminary guardianship can be appointed in a situation that cannot tolerate delay in transferring the baby to a foster family. Most often, preliminary guardianship is assigned to children who have suddenly lost their parents, who are already experiencing severe stress, and placing them in an unfamiliar environment of an institution for orphans will be another negative moment in the child’s life. But there are close relatives who are ready to take the child into care.

Or, as an option, the guardianship authorities removed the minor from the family, but he has close relatives who are ready to take care of the child. In such situations, the PCO arranges preliminary guardianship for the period while the candidates for substitute parents obtain permanent guardianship.

So, preliminary guardianship is the temporary placement of a child in a foster family in the event that permanent guardianship is required over him. This is a mechanism for the placement of a child in which a competent citizen who has taken in a minor is obliged to ensure the living conditions of the minor, take care of his upbringing and education, and also protect his rights.

A special feature of this form of placement for a minor is the fact that preliminary guardianship cannot last more than six months. During this time, the potential guardian must collect all the necessary documents and obtain permanent custody of the baby. The period is calculated from the moment the child receives the status of a minor left without parental care, or from the date the court decision to deprive the mother or father (or both at the same time) of parental rights enters into legal force.

This form of placement of a minor child, such as temporary guardianship, is valid until a permanent guardian is appointed for the child, or until he is placed under the guardianship of a medical or social institution, for example, an orphanage.

Many people confuse preliminary guardianship with temporary , which is appointed for a certain period of time while the legal representatives of the child, for good reasons, cannot fulfill the responsibilities of raising the child. This usually happens for the following reasons:

• serious long-term illness of the legal representative of a minor child;
• their long business trip;
• the child’s legal representative has been detained by law enforcement agencies and is temporarily under their supervision;
• other temporary absence of parents for a valid reason.

Unlike permanent guardianship, temporary guardianship has an end date for its validity, or an event after which it ceases to be valid.

Eg:

• temporary guardianship is established for six months until June 15, 2020;
• temporary guardianship is established until the minor’s mother returns from a business trip;
• Temporary guardianship is established until the ward's father fully recovers.

Typically, in such situations, children are placed in the care of grandparents, adult siblings, aunts or uncles. Of course, parents are not obliged in every such case to go to the guardianship and trusteeship department and arrange temporary custody of their child. Many people do this - they simply leave the baby with their grandmother or sister and go about their business.

But conscientious parents must understand that sometimes situations arise in which the presence of the child’s legal representative is required. If temporary guardianship has not been formalized, then the child’s parent is the legal representative, but he is currently far away and cannot be present. It turns out that at this time the minor officially does not have any legal representative.

A few words need to be said about this form of assistance to a minor left without parental care, such as guest regime . The essence of the guest mode is that a child living in an orphanage lives with another family on weekends or during vacations, that is, as if visiting. In this case, the baby gains experience of communication in the family, and contact occurs between the potential adoptive family and the child.

To apply for guest status, an application from the potential parents of the family that the minor will be visiting is required. Typically, a guest family becomes the first step towards the future adoption of a child. There are certain requirements for candidates for guest registration. These may be capable and adult citizens of the Russian Federation:

• having a permanent official income and permanent residence;
• have no criminal record;
• who have not previously been deprived of parental rights or have not previously been limited in them;
• not previously removed from guardianship;
• not having any addictions (alcohol, drugs, gaming, etc.).

Reasons for the need for guardianship

Guardianship is issued in relation to children left without parental care. The reasons why minors are left without parental care are as follows:

1. Both parents, or one of them, who was the sole legal representative of the child, died.
2. Parents are deprived of parental rights in relation to this minor or have them limited.
3. Both legal representatives, or one of them (if he is the only one) are declared incompetent by a court decision that has entered into force.
4. The parents are in prison. If they are not deprived of parental rights, then guardianship is issued for the duration of the stay of the child’s legal representatives in the MLS.
5. The only parent or both parents undergo long-term hospital treatment at the same time. It often happens that both mother and father have an accident with serious consequences. In this case, guardianship is issued for the duration of their stay in a medical institution.
6. The mother and father are shirking their duties in raising a minor child.
7. The baby is removed from the family because there is a real threat to his life or health.

The main condition for the appointment of preliminary guardianship is the urgency of solving the problem. This usually happens in cases where employees of the guardianship and trusteeship authorities see the inexpediency of placing a child in an orphanage and an undeniable advantage for the condition of the minor when transferring him to a foster family.

Important. Guardianship and trusteeship authorities have the right, but are not obligated, to issue preliminary guardianship. In each case, the decision is made based on the circumstances.

What documents are required?

The potential guardian must prepare certain documents for temporary guardianship. A complete list can be obtained directly from the guardianship authorities. If a citizen is missing at least one document, the application will be refused. The following documents are typically required for temporary guardianship:

• a copy of the passport of the direct applicant, and it reflects the address of permanent registration in any city of the Russian Federation;
• if a citizen legally resides in another region, then he must prepare supporting documentation, for example, title documents, a lease agreement or other papers;
• application for short-term guardianship;
• documents indicating the amount of the applicant’s official income, and this includes not only a 2-NDFL certificate from official work, but also various lease contracts or other papers;
• an extract from the house register, which contains information about who exactly lives in the property in which the applicant lives;
• a certificate confirming that the potential guardian has no criminal record, which can be obtained from the MFC, the police or the police department, and the document is drawn up within 30 days, so it must be completed in advance;
• marriage or divorce certificate;
• death certificate of the spouse if the guardian is a widow;
• a certificate from a medical institution, on the basis of which the optimal state of health of the applicant is confirmed, since if there are significant problems, then guardianship will be refused;
• if the applicant is a pensioner, then a pension certificate is prepared;
• characteristics from the place of work;
• testimony of witnesses and other people living in the same area;
• permission from all persons registered in the property that a child will live in the property.

If necessary, other documents may be requested depending on various circumstances. It is necessary to prepare documents in advance for temporary custody of a child so that the simplified procedure can be completed quickly.

Rights and responsibilities of a temporary guardian

Temporary guardians have all the same rights and responsibilities as permanent guardians. The only exception is the right to dispose of the property of a minor citizen until he comes of age - a temporary guardian cannot perform such operations.

The Civil Code of the Russian Federation (Article 36) states that a guardian is obliged to take care of the maintenance of his ward, provide him with care and treatment, and protect his rights and interests. In addition, there are some provisions in the Family Code, in particular, the document stipulates some nuances of the rights and responsibilities of temporary guardians:

• they have no right to prevent a minor from communicating with his parents;
• they are obliged to raise the child, take care of his health, mental, physical, spiritual development;
• they have the right to independently determine how to raise a child, taking into account his opinion;
• they are obliged to ensure that minors receive general education.

Requirements for a potential foster family

An adult capable citizen of the Russian Federation can become a guardian:

• capable of fulfilling all obligations assumed by him regarding the upbringing and maintenance of the ward;
• able to find a common language and establish a good relationship with the baby;
• having high moral qualities.

Under no circumstances can a person become a substitute parent:

• previously deprived of parental rights;
• convicted of a grave or especially grave crime against a person;
• in respect of whom guardianship duties were previously removed;
• have not completed training courses for guardians;
• registered in a psychoneurological or alcohol dispensary, as well as suffering from other forms of painful addiction;
• suffering from any serious chronic or infectious disease;
• having a non-traditional sexual orientation.

When do difficulties arise?

Additional difficulties during registration arise for the following persons:

• citizens who previously had limited or deprived rights to their children;
• people addicted to alcohol or drugs;
• persons registered at a neurological clinic;
• people who have a criminal record or are currently convicted;
• citizens with serious health problems, including diseases such as HIV, tuberculosis, oncology or mental disorders;
• registered first disability group.

Even the moral beliefs of citizens or relationships with the child are taken into account by guardianship officials. If the minor is over 10 years old, then if he does not want to live with the chosen person, then guardianship is not assigned.

Stages of establishing preliminary guardianship

The preliminary placement of a minor varies depending on the age of the child:

• guardianship is appointed for young children under the age of thirteen;
• for persons who have reached the age of fourteen years before reaching the age of 18 or emancipation, guardianship is assigned.

Minor children

Preliminary family placement is only possible for a child who has lost the care of legal representatives. Preliminary guardianship is possible only in cases where the parents of a minor:

• limited or completely deprived of parental rights;
• are wanted or declared missing;
• died or were declared dead by the court;
• convicted of a criminal offense and are in prison;
• left the baby in a maternity hospital or any other medical or social institution for temporary stay.

Appointment of preliminary guardianship is possible only in cases where the ward lives together with a potential substitute parent, even during the preliminary placement of the child into the family. However, it must be remembered that, unlike permanent guardianship, when registering a preliminary family arrangement, the substitute parent does not have the right to dispose of the ward’s property.

Adults without legal capacity

Preliminary guardianship, like any other guardianship over an adult, is possible only if the court declares him incompetent or partially capable. In the second option, guardianship is appointed.

That is, in order to formalize guardianship over an adult citizen, a court decision that has entered into force is necessary, according to which this citizen is deprived or limited in legal capacity.

In the case of preliminary guardianship, in contrast to the placement of a minor child, the guardian does not have to live with the ward. It will be enough to regularly visit the person under care and provide all his life support needs. Also, if regular visits to the ward are difficult, the guardian has the right to hire a nurse.

Lawyer's answers to popular questions

Mother turned 60 years old. Due to her illness, she was declared incompetent. I took her with me. But her apartment and dacha remained in another city. My sister will live there. She can take care of the property. But we don’t know how to formalize this correctly. Is it possible to obtain double guardianship for an elderly incapacitated person?

The law provides for the possibility of appointing 2 guardians if this is in the interests of the ward. In your case, there is a need to ensure the safety of your mother's property. You and your sister can apply to the guardianship department to appoint both of you as your mother’s guardians. At your request, specialists can document the responsibilities assigned to each of you, or you can agree on them yourself.

Is it possible to change the surname of an adult who is incapacitated?

No. The guardian is not vested with such powers.

How to receive money for performing the duties of a guardian of an incapacitated person?

To do this, you need to contact the branch of the Pension Fund of the Russian Federation at your place of registration. If the ward has reached 80 years of age or is a disabled person of group 1, then you will be awarded compensation. It is 1200 rubles.

In addition, you can contact the guardianship department to conclude an agreement. Specialists do not have the right to refuse to conclude a contract. Under the terms of the agreement, you can receive up to 5% of all income of the ward.

Is it possible not to formalize guardianship over an incapacitated relative?

Can. The law does not oblige relatives to obtain guardian status. The incompetent person will be placed under supervision in a specialized institution.

Is it possible to take custody of a stranger?

Certainly. To do this, you need to contact the guardianship department at your place of registration. Specialists will give you a list of documents that need to be collected. Although the law provides for the need to obtain a certificate of training for a guardian, there are practically no schools for guardians of the incapacitated in the Russian Federation. Therefore, the procedure for collecting documents will not take much time.

Algorithm of actions

When registering guardianship over a minor child, as well as when registering it over a capable adult, the procedure is the same:

1. Visit to the guardianship and trusteeship department.
2. Submitting an application.
3. Inspection by representatives of the PLO of the living quarters of a potential substitute parent.
4. Obtaining an order to appoint preliminary guardianship.

Preliminary placement in a guardianship family is possible for a period of no more than six months. In some cases, the preliminary stay of a ward in a foster family may be extended, but not more than for two months.

Applying for guardianship

The appointment of preliminary guardianship, unlike permanent guardianship, does not require obtaining a conclusion from the educational institution at the place of residence of the candidate for guardianship on the possibility of transferring the child to the applicant's care. Therefore, the potential substitute parent immediately contacts the Public Organization at the place of residence of the future ward.

Required documents

When applying for preliminary guardianship, the required package of documents is minimal. It will be enough to present a passport of a citizen of the Russian Federation and an inspection report of the potential guardian’s living quarters.

Moreover, employees of the public organization in whose territory the child lives can independently request an examination report (as part of interdepartmental cooperation). Within three days, specialists visit the living quarters of the future substitute parent and draw up the required document.

The inspection report must contain the following information:

1. The address where the apartment being examined is located.
2. Description of the residential premises (detached house or apartment, number of floors, how many rooms in the residential premises, its area).
3. Sanitary condition of the living space.
4. A list of all persons living with the potential guardian.
5. Information about the specialists who conducted the examination.
6. Date and signatures.

Terms of consideration

The order appointing preliminary guardianship is issued within three days after filing the application.

It must be remembered that preliminary placement of a ward into a foster family, or registration of preliminary guardianship in relation to an adult, is possible only within thirty days from the moment when:

• the child will receive the status of a minor left without parental support;
• a court decision to deprive (limit) the legal capacity of an adult will enter into legal force.

Are there any cash payments and benefits?

Basically, temporary guardianship is provided on a paid basis.
In this case, the guardian helps the ward in solving legal problems, and also fulfills the assigned powers to protect the interests of the ward. In this case, a guardianship agreement is drawn up (a sample is provided by the authorized body). The amount of benefits that each guardian is entitled to for the maintenance of a child is determined by regional and federal legislation.

If in any region compensation or additional payments are not provided, you must contact the social protection authority or special guardianship authorities. Here experts will tell you what amount of benefits is due in a particular case.

Government payments include:

• one-time benefits after the transfer of the ward to his family;
• monthly payments until the child reaches 1.5 years of age;
• compensation after concluding a contractual relationship regarding the upbringing of a child.

Expert opinion Maria Lokshina Family law expert since 2010

Funds are issued from the local budget if the guardian and ward are registered in the same region (payments will be made from here). Funds from local budgets are also provided if the guardian applied for financial assistance no later than 3 years from the date of granting authority.

Potential guardians

There are no restrictions in Russian legislation on who can become a guardian. Potential guardians may include:

• relatives of a child or adult in need of care;
• their neighbors;
• acquaintances or friends of a potential adult ward or parents of a minor child;
• completely strangers who expressed a desire to take custody of the baby.

If an application for the appointment of preliminary guardianship was submitted by several applicants at once, then, other things being equal, priority is given to close relatives of the future ward.

Registration of guardianship over an elderly person: step-by-step instructions

If we talk specifically about guardianship (not patronage), the initial stage is the recognition of an elderly citizen as incompetent.

Having received a court decision, the potential representative must contact the OOiP:

1. Submit an application for appointment as a guardian, attaching additional documents.
2. Pass a medical examination.
3. Complete training at a guardian school (close relatives are not required).
4. Provide a medical report and a certificate of completion of courses in the educational institution.
5. Provide housing for inspection of living conditions by OO&P employees. The inspection is carried out within 7 days after the application, after 3 days a report is issued. Another 3 days are given to issue a conclusion on the appointment of a representative of the ward.
6. Conclude an agreement on paid or gratuitous guardianship.

Important! In paid guardianship, remuneration is paid from income received from leasing the ward's property, from funds of third parties, and from the municipal budget. The amount of payments does not exceed 5% of the amount of income of the ward (Article

16 Federal Law No. 48).

Documentation

When applying to Social Security, you will need a package of documents:

Statement

The application is filled out in the form established by Order of the Ministry of Health dated 08/08/2011 No. 891n.

What data will be needed:

• Full name, passport details, residential address of the applicant;
• Full name, date of birth of the citizen who needs to be placed under guardianship;
• Request to be appointed guardian;
• Housing conditions, knowledge and skills to determine custody.

At the end the citizen’s signature is placed. The application is drawn up in a single copy.

Sample application for guardianship of an elderly incompetent citizen: alt: Sample application for guardianship of an incapacitated citizen

Characteristics from the employer

The characteristics are filled out by the employer. It is needed to determine the personal qualities, position at work, and merits of the applicant by OO&P employees.

What information must be provided:

• FULL NAME. director, name of organization;
• Full name, employee position;
• Start date of work;
• Education;
• Relationship with the team, behavior in difficult situations;
• Professional and personal qualities;
• Merits at work.

It is recommended to pay the greatest attention to the personal qualities of the employee, because... they are the ones that matter for OO&P

Sample characteristics of an employer for registration of guardianship over an elderly person: alt: Characteristics from the place of work for guardianship (Sample)

Autobiography

The autobiography is filled out in simple written form by a citizen who wishes to become a representative.

What information will you need:

• Full name, date and place of birth;
• Information about parents (optional);
• Start and end dates of training, specialty;
• Dates of employment, positions and names of organizations.

Sample autobiography for registration of guardianship:alt: Sample autobiography

Consent of relatives

The statement of consent must contain the following information:

• Name of the OO&P;
• FULL NAME. potential representative;
• FULL NAME. all family members;
• Signatures.

The consent is filled out at the notary or in the presence of a POiP employee.

Sample statement of consent of relatives for registration of guardianship: alt: Consent of relatives for guardianship of an incapacitated person

Can they refuse?

When appointing preliminary guardianship, PLO employees are not required to check the candidate for surrogate parents. That is why, in most cases, preliminary guardianship is appointed without any particular difficulties. But guardianship authorities may refuse preliminary placement. The reasons for refusal are as follows:

1. A child over ten years of age, for whom the applicant applies for provisional guardianship, refuses to go live with the applicant’s family.
2. The potential guardian's living quarters do not meet sanitary standards.
3. The applicant lives together with the mother or father of the child who has been deprived of parental rights.
4. The candidate for guardianship does not have a civil passport, or the document is invalid.

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How is preliminary guardianship different from temporary guardianship?

Many citizens confuse preliminary and temporary guardianship. On the one hand, in both forms of family arrangement, the guardian is the legal representative of the ward; on the other hand, these are different forms of family arrangement.

What are the differences between preliminary and temporary guardianship:

1. In the first case, the status of the baby is left without parental care, in the second – the parent’s child.
2. In the first case, when registering, only the applicant’s passport and an inspection report of the residential premises are required, in the second - a complete list of documents in accordance with Decree of the Government of the Russian Federation No. 423 of May 18, 2009.
3. In the first case, the disposal of the ward’s property is completely prohibited; in the second, it is permitted, but only with the consent of the PLO.
4. In the first case, guardianship is established for a period of no more than eight months, in the second, the period of temporary guardianship is negotiated in each individual case and can last from several weeks to several years.
5. In the first case, if the guardian writes a petition, a guardianship benefit may be assigned, in the second case, no benefit is assigned at all.

Preliminary family arrangement is necessary so that the potential guardian can slowly collect all the necessary documents to obtain permanent guardianship. Registration of guardianship is a lengthy procedure; it often takes several months until the applicant is able to collect all the necessary documents and visit all the required authorities, and all this time the baby can live in a foster family, in love and affection, and not in an orphanage.

Of course, the guardianship and trusteeship authorities are also interested in ensuring that the child left without parental care lives in a foster family all this time. But sometimes PLO employees put all sorts of obstacles in the way of the applicant, refuse to hand over the child for upbringing, or require some additional certificates. If you are faced with such facts, you can seek help from an experienced lawyer. You can also seek help or advice from our website specialists.

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Author of the article

Natalya Fomicheva

Website expert lawyer. 10 years of experience. Inheritance matters. Family disputes. Housing and land law.

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