48- "On guardianship and trusteeship" governs relations related to the establishment, implementation and termination of guardianship and guardianship of minors. This article will talk about the main provisions recorded in the bill.
Legal regulation
Article 2 of the Federal Law No. 48 provides the basic concepts used in the normative act. What is custody? According to the Law, this is a special type of placement of minors with guardians who are citizens of the Russian Federation. Representatives are appointed by the relevant authorities. Their status as legal representatives of a minor is determined. The whole set of legally significant actions carried out by the guardians in relation to the child is called guardianship.
The concept of guardianship is somewhat different from guardianship. According to the Law, this is a special type of device for minors who are not minors (aged 14 to adulthood). The legal representatives of a legally incapable person appointed by state bodies should do their utmost to promote the rights and obligations of the ward. A ward refers to a citizen ward by legal representatives.
Tasks and principles of state regulation
In accordance with 48-FZ "On guardianship and trusteeship", state authorities should strongly promote juvenile institutions. So, the tasks of state regulation should include:
- ensuring the exercise of their powers by guardians and trustees;
- ensuring the optimal standard of living of persons who are wards;
- ensuring the quality identification of citizens in need of guardianship or guardianship;
- protection of freedoms, rights and legitimate interests of the wards;
- state support to legal entities and individuals whose responsibilities include stimulating the activities of guardianship and trusteeship.
Federal Law No. 48 (as amended on 11.28.2015) also establishes the basic principles of the activity in question. Here it is worth highlighting:
- careful supervision of the performance of duties by guardians and trustees;
- protection of the rights and interests of the wards;
- free acceptance by citizens of their duties in the field in question.
Separately, it is worth talking about the duties and rights of the relevant state bodies.
Rights and obligations of guardianship and trusteeship bodies
Law 48-FZ "On Custody" in Chapter 2 establishes the main powers and tasks of state bodies that exercise powers in this area. What are these instances? According to article 6, these are regional executive bodies.
The tasks of such bodies include the following:
- protection of freedoms, rights and legitimate interests of persons who need custody or guardianship of citizens;
- high-quality supervision of the performance of their duties by guardians and trustees;
- control over the preservation of property of minors under the supervision of relevant persons or organizations.
It is also worth noting that, in accordance with 48-FZ "On Guardianship", the state bodies under consideration have the following types of rights:
- appeal to the courts with a statement on the need to recognize individual citizens as incompetent or partially legally incapable;
- legal release of trustees or guardians from the performance of their duties;
- representing minors during legal proceedings;
- issuance of permits for joint or separate accommodation of trustees or guardians with wards;
- checking the living conditions in the places where the wards live, as well as some other powers.
The law, therefore, clearly regulates the main provisions related to the legal status of all entities of a normative act.
On the legal status of trustees and guardians
48- "On guardianship and trusteeship" enshrines the norms characterizing the legal status of the subjects of the law. So, article 10 describes the procedure for determining citizens who are able to become legal representatives of a minor. The following requirements are highlighted here:
- the guardian or trustee gives written consent;
- successfully completed the preliminary stage of guardianship;
- the guardian or trustee is a competent, full-age, able-bodied citizen.
Federal Law No. 48-FZ "On Guardianship and Trusteeship" enshrines a fairly large number of norms, rules and features regarding the establishment and regulation of relevant processes.
Separately, it is worth highlighting the rights and obligations of citizens themselves, who are legal representatives of minors.
Tasks of legal representatives
Article 15 states that the powers and duties of trustees and guardians are regulated by the Civil and Family Codes. Guardians, according to the law, are the legal representatives of the child, and therefore are obliged in every way to protect their rights and interests. Citizens who have received the status of legal representatives must promptly notify the relevant authorities of a change of residence or temporary absence at the address.
Trustees and guardians are entitled to receive preferential assistance in the medical, educational, psychological, legal and any other field. The law also regulates the property rights of citizens. They will be described later.
On the property rights of trustees and guardians
The law establishes one very important rule: wards do not have property rights to the property of their legal representatives. Conversely, neither guardians nor trustees can claim property of the wards. This includes benefits, pensions, alimony, benefits and other social benefits.
Civil law establishes the general right of ownership of the property of a family consisting of wards and guardians. Thus, minors under guardianship have the right to use the property of their legal representatives with their consent. Trustees and guardians do not have the right to use the property of the ward in their personal interests.
It should be noted that the property of the wards is under protection. The Federal Law No. 48- On Guardianship and Trustees reinforces this norm. The protection of the property of a minor is carried out by its legal representatives. Be sure to make an inventory of existing property.
Disposition of property
Guardians and trustees may dispose of the ward's property only after signing a special document provided by the guardianship authority. As already mentioned, the disposal of the child’s property should not pursue personal goals. So, it is allowed to deposit funds of the ward into a bank account or purchase insurance. It is forbidden to conclude loan or loan agreements on behalf of the guardian. The law speaks of the responsibility for transferring the property of a minor to a loan or use.
Article 20 states that immovable property may not be alienated except in the following cases:
- alienation at an advantageous annuity for the ward;
- compulsory foreclosure on the subject of pledge;
- alienation of real estate in exceptional cases (the need for expensive treatment of a ward, etc.);
- change of home of the ward.
Article 22 states the right of the trustee to demand invalidation of transactions concluded by his trustee without the consent of the legal representative.
Legal oversight
48-FZ "On Guardianship in the Russian Federation" enshrines the need for supervision by the relevant state bodies for representatives of minor wards. How does this supervision go?
Guardianship authorities must be guided by the deadlines established by the Government of the Russian Federation. In certain periods of time, representatives of the relevant authorities should come to the place of residence of the guardians, and conduct a quality check of housing and living conditions. They check the safety of the property of the ward, timely satisfaction of his basic needs. Separately stipulated is the obligation of unauthorized persons to report to the internal affairs bodies about violations of the rights of a minor ward. Wards themselves have a similar right: they can appeal against the actions or omissions of their trustees or guardians in a judicial proceeding.
Guardians and trustees are required to compile special reports and submit them to the appropriate authorities no later than February 1 annually. The reports should contain information about the condition of the property of the ward, about the place of its storage or registration. The report is approved by the guardianship authority and is stored in a personal file.
About liability
According to 48-FZ of 04.24.2008 "On Custody", trustees and guardians are responsible for transactions on behalf of their wards. Responsibility in this case is regulated by civil law. The legal representatives of a minor must be accountable for damage to property of the ward. If the guilt of the guardians or trustees is established, then the judicial authorities draw up a special act and present the guilty citizen with a demand to compensate the losses caused to the ward.
Separately, the liability of legal representatives is regulated by the Criminal Code of the Russian Federation. Perpetrators of harm to the mental or physical health of the ward must be brought to justice.
The instance of custody and guardianship is also responsible. This is indicated in article 28 of the Federal Law of 04.24.2008 (48-FZ "On Guardianship"). Control over the instance is carried out by officials from the executive branch of power of the subject of the Russian Federation. So, if the guardianship authority caused harm to the ward as a result of inaction or illegal actions, a case will be instituted in accordance with the legislation of the Russian Federation.
About termination of guardianship or trusteeship
In accordance with Article 29 48- "On Custody" (with comments and amendments of 11.28.2015), guardianship or custody must be terminated in the following cases:
- death of a ward or legal representative;
- expiration of the certificate of appointment of a trustee or guardian;
- release or removal of the trustee or guardian from the performance of their duties.
Guardians or trustees themselves may refuse to perform their duties. The relevant state body will release them if the following conditions are met:
- violation of the legal interests of the ward;
- improper performance of duties;
- identification of special violations by the state body.
Governmental support
Chapter 7 of the law under consideration establishes the main forms of state support for individuals and legal entities engaged in guardianship and custody of minor citizens.
Here you can highlight:
- determination of the amount of allowances and benefits for wards;
- setting the size of payments for the needs of legal representatives.
Amounts may vary depending on the region of the Russian Federation.