How to refuse guardianship of a minor

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.

Caregiver and guardian: is there a difference?

These two concepts are used in everyday life without distinction, but legally they are different concepts with non-identical functions, rights and responsibilities.

Fundamental differences:

• Guardianship is granted to children under 14 years of age who are considered incompetent citizens. The caregiver observes and corrects the behavior of adolescents from 14 to 18 years old;
• The guardian acts on behalf of the ward, but without the right to make large financial transactions or dispose of real estate. The trustee can only advise;
• under guardianship, a person bears full responsibility for the actions of his ward;
• It is mandatory for the guardian and the ward to live together.

In fact, the guardian takes on the responsibilities of a parent, raises the child, protects him, decides for him who to be friends with, where to go to study. He has more rights than a trustee, but no less difficulties.

Fact! Often conflicts between the guardian and the ward arise against the background of misunderstanding. Purely psychologically, the child believes that he is not obliged to obey, since he is not his parent.

In practice, conflicts can take life-threatening forms. Constant scandals, intolerance and the inability to reach an agreement call into question the continued performance of the guardian’s duties.

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.

When it is necessary

A child under 14 years of age does not have the right to live alone, even if he has housing and money. A guardian is appointed for him. A completely independent young person from 14 to 18 years old, according to the law, must be either in a state institution (orphanage) or in a foster family on the basis of guardianship. Exception: over 16 years of age, with own income, recognized as emancipated (capable).

Guardianship can be voluntary-compulsory (forced), when it is formalized in court, or deliberate, due to the decision of the child’s parents.

When guardianship or conservatorship is unavoidable:

• after death or deprivation of parental rights;
• with partial restrictions on the fulfillment of their obligations in raising a child;
• by a court decision, the father (mother) is not able to carry out the necessary activities;
• if the parents are sick;
• the father or mother is under investigation, in prison, wanted or missing.

Parents themselves can apply to the guardianship authorities to appoint a guardian for their child for a certain period. Reason: due to insurmountable circumstances (business trip, shift). This will not be considered abandonment of the child and will not entail deprivation of parental rights. It is enough to provide compelling evidence of the inability to fulfill the duties provided for by the Family Code.

Infants born from a minor mother (under 16 years of age) need a guardian. According to Article 57 of the RF IC, a trustee (guardian) is appointed with the consent of the child, if he is able to do so due to his age (from 10 years). He is entitled to monthly payments to purchase food, clothing, and personal hygiene items.

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.

How can I refuse guardianship?

In accordance with Ch. 6 of Federal Law No. 48 of April 24, 2008, establishes three grounds for termination of guardianship relations:

1. At the request of the substitute parent.
2. At the request of the ward.
3. At the initiative of the Department of Guardianship and Trusteeship.

A substitute parent may refuse custody for several reasons specified in Federal Law 48, these are:

Relocation of the substitute parent to another region. There are situations when a substitute parent is forced to change his place of residence, but his ward does not want or cannot move. Or the opposite situation: the child may not mind changing his place of residence, but the substitute parent does not have the opportunity to take him with him.

For example, Natalya Evdokimova lost her living space (her apartment burned down in a fire). She decided to return to her parents in another city, but their apartment was so small that they could only allocate space for a woman; there was no place in the parents’ living quarters for the girl under Natalya’s care. Evdokimova was forced to give up custody of the child.

Caregiver's illness. Each applicant for the title of substitute parent is required to submit a certificate of health. If a candidate for guardianship is diagnosed with any serious illness, he will not be able to become a guardian.

However, a teacher may become ill after being appointed as a substitute parent. In this case, the OPP cannot remove the guardian from fulfilling the duties of raising the child, but in some cases the illness may become so serious that the guardian will no longer be able to care for the baby. In this case, the substitute parent may apply to the department of guardianship and trusteeship with a request to terminate guardianship duties.

Illness of the ward. Every minor child for whom guardianship is planned undergoes a medical examination. The candidate for guardianship gets acquainted with the results of the commission and agrees (or disagrees) with the appointment of guardianship depending on the diagnosis of the baby.

There are cases when, after the issuance of an order appointing guardianship (sometimes several years later), it turned out that a minor has a serious illness that requires large material or moral costs on the part of the guardian. But he is not ready for such costs. In this case, the substitute parent also has the right to refuse guardianship.

For example, Olesya Romanova took custody of five-year-old Natasha, whose mother was deprived of parental rights. Three months later, during a medical examination of the child to enroll her in kindergarten, it turned out that the girl was infected with HIV. Olesya Romanova was raising two more young children, so she refused custody of little Natasha for fear of infecting the other children.

Family circumstances. There are often situations when, when registering guardianship, the substitute parent had one situation, and after some time it changes radically. It’s good if there is a change for the better, but what if not? A guardian may lose any opportunity to care for a minor child; moreover, there are cases where the ward’s stay in the guardian’s family could harm the child. In such cases, the substitute parent may also refuse custody of the child.

For example, Maria Shirokova took in two-year-old Maxim. She was confident that she could cope with the upbringing and maintenance of the baby, since she lived with her loving husband, who supported Maria in every possible way.

But two years later, Shorokhova’s husband lost his job, started drinking, and began to give up. The woman had nowhere to go, since the apartment belonged to her husband and was purchased by him before marriage, and living a young child in the house of a drunken alcoholic was dangerous for his health and full development. Maria was forced to give up custody of the baby.

We looked at the four most common reasons for refusing guardianship; in practice, a wide variety of situations can arise. It is difficult to provide for all of them, so the OPP staff carefully considers each individual case of refusal of guardianship.

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 re-register guardianship for the same person?

Officially, there is no prohibition in law from re-registering guardianship over the same person. However, practice shows that if a guardian voluntarily renounced his obligations or was forcibly removed from them, then he will not be able to become a guardian again, especially if a child acted as a ward. Experts will consider that the applicant is unreliable, and that his refusal of guardianship in the past has already caused psychological trauma to the ward. In this regard, it will not be possible to re-register guardianship over the same person.

Expert commentary

Gorbunova Olga

Lawyer

But if the guardian in the past refused his obligations due to, for example, a serious deterioration in health, and currently feels well, then he has a chance to re-register guardianship over the previous ward.

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.

Guardianship

The definition of guardianship is given in Federal Law No. 48 “On Guardianship and Trusteeship,” issued on August 24, 2008. In accordance with it, guardianship of minors is a form of placing them in a family and imposing a certain range of rights and obligations on adults temporarily performing parental responsibilities.

Note! Guardianship is established solely to protect the interests of persons who, due to age or existing illnesses, cannot independently defend their rights.

Guardianship can be issued:

1. In relation to children who have not reached the age of 14.
2. In relation to adults declared incompetent due to existing mental illness.

An empowered guardian can represent the interests of the child in all instances and protect his rights. In addition, he is obliged:

1. Provide timely and complete care for the person under care.
2. Provide for his basic needs.
3. Raise a child and give him an education in accordance with his age and mental development.

The above list outlines only a narrow range of responsibilities, but their range is much wider and more diverse.

Over the incompetent

Persons who, due to their physical and mental illnesses, cannot care for themselves and are not aware of their actions are recognized as incompetent. Such people are not able to make an informed decision and calculate the consequences of it, and accordingly, they are not able to bear responsibility for their actions.

Minors achieve partial legal capacity at 14 years of age, and full legal capacity at 18. For incapacitated children, this transition does not occur automatically. Purely theoretically, depending on the diagnosis, they can be cured over time and become full-fledged members of society. If this does not happen, then after reaching the age of majority they become incapacitated adults.

Incapacity is determined exclusively by appropriately qualified doctors. As a rule, status is assigned for a certain period, after which a re-examination and a new verdict are required.

Over minors

Minors are considered children aged 0 to 18 years. The responsibilities of guardians are automatically assigned to the biological parents, and for this there is no need to complete special courses or obtain permission. If for some reason parental obligations are not fulfilled by the biological mother and/or father, guardianship of another adult is established over the child. This could be a relative of the child or another person.

An adult can represent the interests of a minor in the following statuses:

1. Until the age of 14, we are talking exclusively about custody.
2. From 2 p.m. to 6 p.m., guardianship moves into the guardianship stage. The trustee also has a number of responsibilities, but some responsibility is also assigned to the minor under guardianship.

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Not everyone can become a guardian. There are a huge number of requirements for applicants for this role. The future representative is obliged:

1. Be of legal age and legal capacity.
2. Have no problems with the law in the form of a criminal record.
3. Have good living conditions for the future ward.
4. Have an untarnished parental reputation. Persons previously deprived of parental rights or limited in them will not be able to apply for this role.

Note! The reason for the range of requirements is that the representative of the minor has a huge responsibility. The guardian must be responsible for every step of the ward, for any of his actions

He is also responsible for the values ​​he instills in him and the consequences they will bring.

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.

Reasons for ending guardianship

After the termination of the relevant obligations, control over the conclusion of transactions, property or financial transactions is exercised by representatives of the territorial guardianship authorities.

1. Inability to continue to fulfill one’s duties due to a misunderstanding between the ward and the guardian or members of his family.
2. The minor's representative has been given a diagnosis that prevents him from caring for someone.
3. Change of residence of the guardian family and inability to take the child with them.
4. Unreasoned reluctance to continue to bear the obligations assumed.

Fulfilling the role of a guardian is associated with constant monitoring of his actions by inspection bodies. If there are compelling reasons, they may request that the person be excused from representing the child. The reason may be aggression towards the ward, failure to fulfill obligations, leaving him in danger and much more.

Submitting an application

If you are looking for a sample template, there is no standard form or strictly regulated form.

To do this, you must indicate in the text of the application:

1. Where the document is sent (full name of the organization).
2. Details of the applicant for removal of guardianship (full name, place of residence, date of birth and contact phone number).
3. The text asks for an extremely precise and concise explanation of why the duties of a guardian need to be removed. Provide a valid reason.

The application for the removal of guardianship powers is written by the guardian himself. To compile it, you do not need a special form, and as for the order of presentation of information, they are written down as follows:

1. Name of the guardianship service department.
2. Information about the applicant – full name, residential address, date of birth, contact numbers.
3. The statement itself should consistently explain why such a drastic decision was made.
4. Signature of the applicant and date of submission of the document.

A sample is attached to the article.

Usually, after receiving an application, representatives of the guardianship authorities conduct a conversation with the applicant; if they receive confirmation of the seriousness of his intentions, he will be relieved of his duties.

Domestic legislation treats guardianship as a voluntary undertaking. Therefore, refusal of guardianship does not entail any punitive measures. However, there are a number of legal consequences associated with this action that guardians may want to be aware of before making the decision.

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 other cases when the ward acquires full civil capacity. This also applies to children who have not yet reached the age of majority. In life, inconsistencies may arise in the legal actions of guardians, as well as contradictions in relations with the ward and the trustee when:

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.

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