What is the difference between foster care and guardianship?

What is pre-custody?

Expert opinion

Stanislav Evseev

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

The concept of preliminary guardianship is established by Federal Law No. 48 of 2008. Preliminarily appointed guardianship means the temporary placement of a minor or incapacitated citizen into a family, if permanent guardianship is required over him.

However, the list of documents for permanent guardianship is significant. A potential candidate must undergo a medical examination and receive a conclusion on the possibility of being a guardian.

In order not to place a child or an incapacitated citizen in a specialized organization during the collection of documentation by a potential guardian, guardianship is assigned in advance.

A special feature of the form of the device is the possibility of registration only within 30 days. The period is calculated from the moment the child receives status or the court decision regarding an adult citizen enters into force.

Requirements for potential guardians

Execution of documentation for preliminary guardianship is allowed to close relatives, friends, or the applicant is able to stay at the request of the parents. At the time of guardianship, the ward will retain his full name.

Requirements for a guardian:

1. people who have reached the age of 18 and are legally capable;
2. persons with elevated moral qualities;
3. people who can fulfill their obligations regarding wards;
4. citizens who know how to establish excellent mutual relationships with children.

A trustee cannot be:

• A person who is deprived of parental rights.
• Citizens who are convicted of murder or other illegal actions against the health and life of another person.
• A person who did not provide specialized courses for raising a child.
• A person from whom a judicial authority previously removed parenting obligations.
• A person who has previously been or is currently registered with a dispensary.
• A citizen who has significant chronic or infectious diseases.
• A person with a non-traditional orientation.

A temporary guardian helps to provide the child with excellent living conditions, adequate food intake, good manners, health care and provision of clothing through:

1. Parents, when the guardian receives a summary of their prolonged absence.
2. Funds provided by government agencies to a child under guardianship.
3. Pension contributions, alimony, which may be due to children whose parents have died or are deprived of their rights.

Guardianship authorities monitor such a family more carefully throughout the entire period that the child is under guardianship. A temporary guardian is not able to manage the child’s property, as well as help carry out certain transactions that affect aspects of property management.

Sequence of stages of establishing guardianship:

The procedure for obtaining a preliminary placement varies depending on the age of the potential ward:

• guardianship is appointed in relation to a young child (from 0 to 13 years old) and an adult person deprived of legal capacity;
• Guardianship is appointed for a minor child (from 14 to 18 years old) and a citizen with limited legal capacity.

over minors

Preliminary guardianship can only be assigned to a minor deprived of parental care,

To obtain the status of a child left without parental care, the parents of a minor must be:

• deprived or limited in parental rights;
• wanted or declared missing;
• dead or declared dead by a court;
• those sentenced to serve their sentences in places of deprivation of liberty;
• abandon the minor in a maternity hospital or other medical or social organization.

In the case of provisional guardianship of a minor, the ward must live with the guardian, even during the period of preliminary placement. However, the guardian does not have the right to dispose of his property.

Important! At the request of a potential representative, a monthly benefit may be assigned for the period of temporary placement. In a number of regions this procedure is not practiced. However, the guardian must submit a written application and receive a written refusal. The document can be appealed in court.

over incompetent adults

This form of arrangement is assigned to an adult citizen recognized by the court as incompetent or partially capable.

In relation to an adult ward, a court decision that has entered into force will be required, which deprives him of legal capacity or limits it.

In the case of a preliminary placement, the guardian is not required to live with the ward. Even if he needs constant outside care, it is enough to visit him daily and provide for his needs.

Important! The provisional guardian of an adult citizen is not entitled to receive benefits. The funds are paid in accordance with Government Decree No. 343 of 2007. In 2020, the payment is 1,200 rubles. The amount may be increased due to the regional coefficient.

Concept and legislative framework

Preliminary guardianship of a minor is a mechanism for the child's life arrangement. During this period, an adult capable person undertakes to protect his powers and interests, as well as to provide him with suitable living conditions, providing care for his supervision, upbringing and obtaining a quality education.

Since guardianship must be established as soon as possible, the procedure for its registration is significantly simplified.

Guardianship differs only in the age category of a person under 18 years of age: before he reaches the age category of 14 years, guardianship is imposed on him, and after 14 years, guardianship is imposed on him.

The legislative framework regulating guardianship of a minor is represented by such regulatory documents as:

1. RF IC - Article 146 identifies the conditions and forms of guardianship.
2. Civil Code of the Russian Federation - Article 35 regulates the mutual relations between the trustee and the ward.
3. Government Resolution No. 542 dated May 1, 1996. This act specifies a list of diseases that prohibit the registration of guardianship of a minor.
4. Federal Law of Russia No. 48 dated April 24, 2008. The documentation contains data on the forms of guardianship and guardianship.

These laws have complete information about the conditions for registering guardianship, financial payments to the guardian and the necessary papers. Locally, issues of guardianship and trusteeship are dealt with directly by guardianship authorities, local administration, social services and district judicial authorities.

Algorithm of actions

The registration procedure is the same for both a minor ward and an incapacitated person.

Procedure:

1. Contact the guardianship department.
2. Submitting an application.
3. Conducting a residential inspection.
4. Receiving an order.

A preliminary placement is prescribed for a period of no more than 6 months . In exceptional cases, the period may be extended for another 2 months .

The document must contain an expiration date. In case of extension, another act of the local government body is issued.

Applying for guardianship

To appoint preliminary guardianship, it is not necessary to obtain a conclusion from the guardianship department at the place of residence of the potential candidate. Therefore, he must contact directly the department at the place of residence of the ward.

A citizen must declare his right on the basis of Art. 12 Federal Law of 2008 No. 48. One of the options for pre-arranging a minor is to take him away from his mother and father under Art. 77 RF IC (if there is a threat to life).

Important! The procedure for selecting a potential candidate is also entrusted to the specialists of the guardianship department. If the person in need of guardianship does not have close relatives who are willing to take care of him, then the guardian can be chosen from among strangers.

Required documents

A feature of the preliminary device is the provision of a minimum package of documents. The citizen must present only an examination report from the guardianship department at the place of residence and a civil passport.

Specialists of the department at the place of residence of the ward can independently request an examination report as part of interdepartmental cooperation. The certificate is provided within 3 days.

During the specified time, specialists must visit the living quarters of the potential guardian. The document must include the following information :

• corner of the guardianship department form;
• the applicant's residential address;
• description of housing (house or apartment, number of floors, total and living area, number of rooms);
• sanitary condition of housing;
• a list of citizens who live together with a potential candidate;
• information about the specialists who conducted the examination;
• date and signature.

The document is drawn up in writing in 2 copies. If an unfavorable act is issued, a citizen has the right to challenge it in court.

Important! When appointing a preliminary placement, guardianship department specialists should not collect additional characterizing information on a potential candidate.

Terms of consideration

The order to appoint a guardian is preliminary issued within 3 days. Specialists issue the citizen with a certificate.

A device assigned in advance can only be issued within 30 days from the date of:

• the child obtains the status of being left without parental care;
• entry into force of a court decision on deprivation/limitation of legal capacity.

The period for reviewing documents cannot exceed 3 days. From the moment the order is received, citizens are given all the responsibilities of a permanent guardian. But the rights regarding the child are still limited.

Ward's property

Art. 12 Federal Law No. 48 of 2008 imposes a direct ban on the disposal of the ward’s property by a preliminary guardian. The permanent guardian may also dispose of the children's property only with the permission of the guardianship department.

Government Decree No. 423 of 2009 does not include preliminary representatives in the list of citizens who must submit a guardian's report.

However, funds are required to maintain and provide for a minor. Since the law does not provide for verification of the financial viability of the guardian, he has the right to request the assignment of benefits.

Amount of social payments to guardians

The amount of benefits that a guardian is rightfully entitled to support a child is determined by federal and regional law.

It happens that in certain regions certain additional payments and compensations are not provided. In such a situation, you need to contact the social protection authority for residents, as well as the guardianship authorities. They tell you what benefits are likely to be provided during the registration of preliminary guardianship.

Registration of guardianship is a rather difficult procedure, for which you need to prepare not only morally, but also from the legal aspect.

Reasons for refusal

The law exempts specialists from the guardianship department from wasting time checking a preliminary candidate. Therefore, the device is prescribed successfully in most cases.

Registration procedure and required documents

In addition to your passport and application, you will also need:

• statement from parents (guardian);
• parental consent to establish guardianship;
• guardian's consent;
• certificates confirming that the guardian has no criminal record or infectious diseases .

If the child has parents, then they write the application for guardianship; if they do not exist, then the candidate for guardian writes the statement of desire to establish guardianship over the child.