In the Russian Federation, citizens can enter into various legal relations arising in the political, economic, social spheres. Moreover, they have certain duties and rights.
Features of the acquisition of legal capacity
According to general rules, the subject receives civil rights and obligations from the age of 18. In exceptional cases, emancipation is allowed. It means the acquisition of legal capacity in 16 years. From this moment on, subjects have the right to independently conclude agreements, dispose of their property, and participate in the public and political life of the state. At the same time, each adult person is responsible for his actions.
In practice, however, situations are possible where a citizen, although he has reached the age of 18, cannot, by virtue of a physical or mental disorder, independently bear responsibilities and exercise his rights. In such cases, he shall be recognized as fully or partially incompetent and a trustee or guardian shall be appointed to him.
All persons under the age of majority are also considered incompetent due to their age. Their interests are usually represented by parents (adoptive parents). If such representatives are absent from the person, guardianship or guardianship is also established over him. Consider their features.
The legislative framework
The exercise of rights and obligations by incapable persons is regulated by civil and family law. Guardianship and trusteeship are the most important social institutions. The Civil Code defines general provisions governing their functioning. In the UK, attention is paid mainly to guardianship and guardianship of minors.
In addition, Federal Law No. 48 is applicable in the Russian Federation. This normative act regulates relations exclusively related to guardianship and trusteeship.
Legal personality
Each participant in civil law relations must fully possess legal and legal capacity. Together they form the personality of the person.
Legal capacity arises from a citizen from birth and ceases with his death. Legal capacity, as mentioned above, comes from a certain age. From the age of 16 or 18, a citizen becomes capable of acquiring rights and taking responsibility for their implementation through his actions. In other words, a person understands the meaning of his behavior and suggests its consequences.
The ability to acquire rights and fulfill obligations requires some experience. That is why the legislation connects the onset of legal capacity with the achievement of a specific age.
What is custody and guardianship?
There are different opinions in the literature regarding the definition of these institutions. The most appropriate can be considered the position of N. M. Ershova. It defines guardianship and trusteeship as a complex branch of civil and family law. It provides for all types of care for citizens who need special forms of protection of their interests and rights.
Guardianship and trusteeship are closely connected with each other. In both cases, it is a question of partially or completely incompetent persons. The provisions governing guardianship and trusteeship are contained in the same legal documents. At the same time, both institutes provide for general rules for the appointment of representatives of the legally incompetent, norms that enshrine their duties and rights.
The issues related to the provision of care for the legally incapable are handled by the guardianship and trusteeship bodies.
Institutional Differences
There are a number of reasons why guardianship differs from guardianship. In the first case, the subject caring for a needy citizen performs all legally significant actions for him. The trustee, in turn, is considered a kind of assistant to the legally incompetent.
In addition, the age of the person is also important for establishing guardianship and trusteeship. Children under 14 can only be assigned guardians. If the child is 14-18 years old, guardianship may be established over him.
Legal requirements
A guardian or trustee may be a citizen who has reached the age of majority and is fully competent. The selection of candidates is carried out by the guardianship authority located at the place of residence of the person in need.
Limitations and Prohibitions
According to the Federal Law "On Guardianship", the following persons cannot become representatives of a legally incompetent person:
- Suffering from drug addiction, alcoholism, substance abuse.
- Suspended from the duties of trustees and guardians for violations of the law.
- Limited or deprived of parental rights.
- Former adoptive parents in the event that the adoption was canceled by the court for violations.
- Not able to fulfill the duties of a trustee / guardian for health reasons.
In the latter case, we are talking about diseases stipulated by a special List approved by government decree No. 542 of 1996. Among them:
- Tuberculosis.
- Malignant neoplasms.
- Diseases of the internal organs, nervous, musculoskeletal system at the stage of decompensation.
- Infectious pathologies.
- Mental disorders, the presence of which became the basis for the recognition of a citizen fully or partially incompetent.
- Injuries and illnesses that entailed the establishment of 1 or 2 disability groups that completely exclude disability.
Personal qualities
The guardianship and trusteeship departments select candidates with particular care. First of all, the applicant’s compliance with the requirements of the law is assessed. Equally important are the personal qualities of the subject.
The candidate must understand that caring for a partially / completely incompetent person is a big responsibility. It requires not only time, but also strength and patience. Legislation allows for approval of a candidate with the person in need, if possible.
Of particular importance is the identity of the applicant in establishing guardianship and custody of a mentally ill person. The fact is that it is more advisable for a person caring for such a citizen to live together with him. This, in turn, entails many domestic problems, and sometimes poses a threat to the life of the guardian / trustee.
Any person who wants to take care of a needy person needs to have communication skills with sick people, experience in using various, including psychotropic medicines, knowledge of the symptoms of certain diseases.
Best of all, of course, the relatives of a person in need of care cope with the difficulties that arise. If the subject does not have close people, the candidate is selected from among persons with certain experience and who wish to assume the corresponding responsibilities.
Minors care
The legislation establishes more stringent requirements for persons wishing to establish custody and / or guardianship of a child. The social side of the issue is of particular importance.
For a minor, conditions should be created as close as possible to family conditions. Accordingly, preference is given to married couples. It is advisable that the minor and future guardian / guardian be familiar. This will help establish trustful, friendly relations. In this regard, if there is such an opportunity, it is better to choose a guardian or trustee from among the relatives of the child or persons with whom he is very familiar.
Special conditions
Of particular importance for the regulation of the legal status of trustees and guardians is the requirement to obtain the consent of a person to fulfill relevant duties. In previous legislation, such a provision was absent. For the first time, the requirement of voluntariness of a citizen’s will was enshrined in the 1967 CoBS.
This situation was caused by the following. The first set of laws on family and marriage was approved in 1927. At that time, the percentage of street children in the country was very high. Accordingly, the guardianship and trusteeship departments had the most important tasks - to save children from death and hunger. Ordinary citizens could quite cope with this. Meanwhile, in practice, there have been few cases of forced appointment of persons as trustees or guardians.
Is there a reward for caring for the needy?
According to general rules, guardianship and trusteeship are established free of charge. Partially or completely incapacitated citizen is supported by allowance, pension accrued to him, or his property.
Meanwhile, the guardianship authority of the district in which the needy lives, with the applicant may conclude a civil contract involving the payment of a certain fee. Of course, this should be done solely in the interests of the ward.
Powers of the guardian / trustee
The performance of duties by a citizen begins from the date of the decision on the appointment of his representative as a ward. In this case, the subject receives a special certificate.
Acting as the legal representative, he is entitled to perform all the actions that the ward himself could have performed if he had been capable.
The legislation, however, enshrines a number of restrictions. They are necessary to protect people in need from the unlawful actions of their guardians or trustees. For example, according to paragraph 2 of clause 37 of the Civil Code, a guardian is not entitled to conclude, and a trustee does not give consent to certain transactions. It is, in particular, about donating, exchanging, selling, renting and other administrative actions if they entail a reduction in property owned by the ward. To make such transactions, you must obtain permission from the trusteeship and guardianship authority.
However, it should be borne in mind that even the consent of these structures cannot be a 100% guarantee of the legality of the transaction.
Income Management
It is also carried out with the consent of the guardianship authority. Moreover, any administrative actions should be performed in the interests of the ward.
The income of a partially / completely incompetent citizen includes pensions, benefits, other social benefits, as well as income from the use of property (rental, for example).
Additional protection of property rights
The legislation establishes several more important guarantees for wards. Thus, the regulations stipulate that neither the trustee / guardian, nor their spouses and relatives can conclude any transactions with the ward. An exception here is only the transfer of ward property as a gift.
Guardians / trustees may not be representatives of the trustee in transactions whose second side is their relatives and spouses.
Cohabitation
Guardians / Trustees must live with their wards. This is especially important when it comes to minor citizens who need constant care. Cohabitation provides an atmosphere conducive to the effective education of minors.
If we talk about mentally ill people, then the constant presence of a guardian / guardian next to them will allow us to provide medical assistance in a timely manner, to monitor the timely intake of medications, and compliance with the diet. Equally important is the security of both the ward and those around him.
The Rules for registering entities in the Russian Federation at the address of residence stipulate that the registration of the ward at the place of residence of the guardian / trustee should be unhindered, as well as vice versa.
Separate residence of citizens is allowed if the guardian has reached 16 years of age and if this will not adversely affect the education or protection of his interests. To do this, you must obtain the permission of the guardianship authority.
The cohabitation of persons ensures the proper protection of the ward's housing rights. A partially / completely incompetent citizen may become the owner by virtue of a contract (sale, gift, etc.) or law (inheritance of property). Guardians and trustees are required to take all necessary measures to ensure that the tutelable exercise their rights to use, dispose and own the dwelling properly.
Authorized bodies
As mentioned above, all issues related to providing proper care for those in need are decided by the territorial guardianship and trusteeship authorities. The activities of these structures are regulated by Article 6 of the Federal Law No. 48.
Clause 1.1 of the norm states that the authority in the field of guardianship and trusteeship may be vested in local authorities. In practice, this happens quite rarely. Usually, in each municipality there is a territorial branch of guardianship. The address can be found on the official website of the municipality. In the Moscow region there are a lot of such departments. For example, only in the Central District of Moscow there are 10 of them. Some of them deal with custody of minors and pensioners. For example, on the street Novo-Basmannaya, 37 and on Gorokhovy p., 5 such a guardian council operates. But on the street. Bakhrushina, 20 operates a department for the device of minors only.