A citizen who, due to a persistent mental disorder, cannot understand the meaning of his actions or manage them, may be declared incompetent by the court. After the court decision enters into legal force, the guardianship and trusteeship authorities are informed about the decision, which establish guardianship over it. On behalf of a citizen declared incompetent, transactions are carried out by his guardian (Article 29 of the Civil Code of the Russian Federation).
In accordance with paragraphs 2 and 3 of Art.
37 of the Civil Code of the Russian Federation, the guardian does not have the right, without the prior permission of the guardianship and trusteeship body, to carry out, and the trustee does not have the right to consent to, transactions of alienation, including the exchange or donation of the ward’s property, leasing it (lease), for free use or as a pledge , transactions entailing the renunciation of the rights belonging to the ward, the division of his property or the allocation of shares from it, as well as any other transactions entailing a decrease in the property of the ward. The guardian, trustee, their spouses and close relatives do not have the right to enter into transactions with the ward, with the exception of the transfer of property to the ward as a gift or for free use, as well as to represent the ward when concluding transactions or conducting legal cases between the ward and the spouse of the guardian or trustee and their relatives relatives. According to Art. 20 of the Law on Guardianship FZ-48 of 04/24/2008 Nedv. property belonging to the ward is not subject to alienation, with the exception of: forced foreclosure on the grounds and in the manner established by the Federal Law, including when foreclosure on the subject of pledge; alienation according to the contract. rent, barter, if such agreements are made for the benefit of the ward; alienation of a residential building, apartment, part of a residential building belonging to the ward; alienation of property excl. cases (payment for treatment), if the interests of the ward require it. In accordance with Art. 21 Part 4, when concluding an agreement on behalf of a ward without the permission of the guardianship and trusteeship authorities, the latter is obliged to apply on behalf of the ward to the court with a demand for termination. The guardianship and trusteeship bodies are the executive authorities of the constituent entities of the Russian Federation. The powers of the guardianship and trusteeship authorities include (Article 8 of the Federal Law on Guardianship): 1) identification and registration of citizens who need to have guardianship or trusteeship established over them; 2) applying to the court to recognize a citizen as incompetent or to limit his legal capacity, as well as to recognize a ward as capable if the grounds on which the citizen was declared incompetent or was limited in his legal capacity no longer exist; 3) establishment of guardianship or trusteeship; 4) exercising supervision over the activities of guardians and trustees, the activities of organizations in which incompetent or partially incompetent citizens are placed; 5) release and removal in accordance with this Federal Law of guardians and trustees from the performance of their duties; 6) issuance, in accordance with this Federal Law, of permits to carry out transactions with the property of wards; 7) conclusion of trust management agreements for the property of wards in accordance with Article 38 of the Civil Code of the Russian Federation; representation of the legitimate interests of minors and incapacitated citizens under guardianship or trusteeship in relations with any persons (including in the courts), if the actions of guardians or trustees to represent the legitimate interests of wards contradict the legislation of the Russian Federation and (or) the legislation of the constituent entities of the Russian Federation or the interests of the wards or if the guardians or trustees do not protect the legitimate interests of the wards; 9) issuance of permission for the separation of trustees and their minor wards in accordance with Article 36 of the Civil Code of the Russian Federation; 10) selection, registration and preparation, in the manner determined by the Government of the Russian Federation, of citizens who have expressed a desire to become guardians or trustees or to accept children left without parental care into the family for upbringing in other forms established by family legislation; 11) checking the living conditions of wards, compliance by guardians and trustees with the rights and legitimate interests of wards, ensuring the safety of their property, as well as the fulfillment by guardians and trustees of the requirements for the exercise of their rights and the fulfillment of the duties of guardians or trustees, determined in accordance with Part 4 of Art. 15 Federal Law “On guardianship and trusteeship”; (see text in the previous edition) 12) informing citizens who have expressed a desire to become guardians or trustees or to accept a child left without parental care to be raised in a family in other forms established by family legislation, about possible forms of placing a child in a family, about the characteristics of individual forms for placing a child in a family, on the procedure for preparing documents necessary to establish guardianship or trusteeship or placing children left without parental care into a family in other forms established by family legislation, as well as providing assistance in the preparation of such documents; 13) providing assistance to guardians and trustees of minor citizens in the implementation and protection of the rights of their wards. Rights and responsibilities of guardians. The rights and obligations of guardians are determined by civil law. The rights and responsibilities of guardians regarding the education and upbringing of minor wards are determined by family law. Guardians are the legal representatives of their wards and have the right to defend the rights and legitimate interests of their wards in any relationship without special authority. A trustee may act as a legal representative of his ward in cases provided for by federal law. In the interests of the ward, the guardianship and trusteeship authority in the act of appointing a guardian or trustee or in the agreement on the implementation of guardianship or trusteeship may indicate certain actions that the guardian or trustee does not have the right to perform, including prohibiting the guardian or trustee from changing the place of residence of the ward, as well as in order to take into account the individual characteristics of the ward, establish mandatory requirements for the exercise of the rights and performance of the duties of a guardian or trustee, including such requirements that determine the specific conditions for the upbringing of a minor ward. Guardians are required to notify the guardianship and trusteeship authorities of a change in the place of residence of their wards no later than the day following the day the wards leave their previous place of residence. In the event of a temporary absence of a ward from his place of residence, in particular in connection with his studies or stay in a medical organization, or stay in places of serving a sentence, the exercise of the rights and fulfillment of the duties of a guardian or trustee in relation to the ward does not cease.
Rights of a guardian (trustee)
Like any citizen, the trustee has his own rights, but in this case they are in relation to the ward.
The guardian has the following rights:
- Has the right to choose educational institutions, taking into account the opinion of the ward.
- Has the right to demand in court the ward, the return of the ward who was under guardianship.
- Has the right to choose the education system for the ward; in rare situations, it is necessary to discuss with the guardianship authorities.
- There is no right to prohibit communication between the person under guardianship and any persons.
Recognition of refusal to issue an alienation permit as illegal
Without the prior consent of the guardianship authority, alienation of the ward’s property is prohibited; for example, selling an apartment in which a share belongs to a minor child is possible only with his consent. Judicial practice shows that cases of refusals occur quite often. Of these, there are illegal and unfounded decisions.
If the guardianship refuses to carry out the transaction, the citizen has the right to appeal such a decision in court. Such cases are considered according to the rules provided for in Chapter 22 of the CAS of the Russian Federation. An administrative claim is filed in the district court. The appeal period is 3 months.
When considering a case, the judge is not limited to the arguments specified in the application, but also determines the legality and validity of the decision, finding out:
- whether the rights of the plaintiff were violated by the decision;
- whether the deadline for filing a claim has been met;
- compliance with the requirements of current legislation when making a contested decision (grounds, procedure).
IMPORTANT : the authorized body must prove the legality of the refusal, and the plaintiff must prove the fact of violation of his rights.
If the applicant’s demands are legitimate, then there is every chance of a positive decision.
If the defendant’s refusal is declared illegal, the court orders the violations to be eliminated. The authorized body is obliged to consider the application again in the manner prescribed by law and make a reasoned and reasoned decision.
Within a month from the date the judge’s decision enters into legal force, the guardianship authority is obliged to inform the court and the citizen who filed the application about the correction of the mistake.
Ward's property
How is the ward's property disposed of? Initially, it is necessary to determine what property belongs to a minor (minor, incapacitated, or person of limited legal capacity) by right of ownership (Article 209 of the Civil Code of the Russian Federation). Relevant documents must be available:
- certificate of ownership;
- deed of gift;
- store receipts.
The concept of “own property” includes:
- apartment, house;
- car;
- household appliances, electronics;
- jewelry;
- relics;
- cultural heritage items;
- money.
The disposal of the ward’s property according to the Civil Code of the Russian Federation is carried out exclusively in his interests. If a potential transaction worsens the situation of the person under guardianship, then its implementation is impossible.
The procedure for filing a claim and considering the case is enshrined in the Code of Civil Procedure of the Russian Federation
If the judge makes a decision in favor of guardianship, the consequences of the invalidity of the agreement apply. Thus, the property must be returned to the ward. Losses caused to the parties to the transaction are compensated by the guardian/trustee in full. Both actual damage and lost profits are compensated.
In addition to civil liability, representatives of the ward may also be brought to administrative or criminal liability. Art. 5.35 of the Code of Administrative Offenses of the Russian Federation provides for a fine for improper performance of their duties by parents and other legal representatives of minors. As for criminal liability, for causing property damage to the owner by deception or abuse of trust, they can be prosecuted under Art. 165 of the Criminal Code of the Russian Federation.
The representative of the ward is liable if his actions contain elements of a crime, namely the presence of guilt, the occurrence of harm and the connection between them. To be held accountable, the guardianship must send a statement to the prosecutor's office and law enforcement agencies.
According to Art. 401 of the Civil Code of the Russian Federation, a representative of a ward may be found innocent if he took all measures for the proper performance of his assigned duties.
Does a guardian have the right to the inheritance of the ward?
Inheritance of the property of a ward is provided for in two ways, by will or law.
By will
There is a type of people who are only after money and are ready to do absolutely anything for it. This class of people specifically takes incapacitated citizens into their care in order to receive an inheritance after their death, therefore the legislation of the Russian Federation provides a special clause indicating that guardianship of property can be obtained only in one case, if the agreement was drawn up before the recognition of the incapacity of the ward.
This clause is necessary because people with mental disorders who are capable of signing the same will without being of sound mind are also recognized as incompetent persons.
In law
If the trustee is a relative of the ward, then he is provided with the transfer of the inheritance by law, otherwise receiving the inheritance is impossible.
But in other cases not provided for by law, you can go to court to review the case under this paragraph of the article.
