Guardianship, guardianship and patronage - Civil law

Guardianship, patronage and patronage

The institute of guardianship and curatorship allows to fill the capacity of citizens with full or partial lack of legal capacity , but they need to protect their rights and interests. Guardianship is established over minors (under the age of 14), as well as over citizens recognized as incompetent by the court due to a mental disorder. At the same time guardians are representatives of the wards by virtue of the law and perform all necessary transactions on their behalf and in their interests (Article 32 of the Civil Code). Diagnosis of a mental disorder is made in accordance with generally recognized international standards. To diagnose a linden suffering from a mental disorder, medical means and methods are used that are permitted in accordance with the procedure established by the legislation of the United States on health (paragraph 1.2 of article 10, article 143 of the United States of America of 02.07.1992 No. 3185-1 on psychiatric care and guarantees of the rights of citizens in its provision "). The forensic psychiatric examination is carried out in accordance with the procedure established by the Code of Criminal Procedure, the Code of Civil Procedure, Federal Law No. 73-FZ of 31.05.2001 "On State Forensic Expert Activities in the United States". Transactions on behalf of a citizen recognized as legally incompetent by the court are committed by his guardian, however, if the grounds for recognizing the citizen are not legally incompetent, the court finds him legally competent, and on the basis of a court decision the guardianship established above him is canceled. Guardianship is established over minors between the ages of 14 and 18, as well as over citizens who are restricted by the court in legal capacity (Article 33 of the Civil Code). Unlike the trustee, the trustee does not make transactions in place of the ward, but through his approval he controls the transactions that the latter does not have the right to commit independently. Also the trustee assists the ward in the exercise of his rights and duties and protects him from abuse by third parties. At the same time, the trustee is not a legal representative of the ward.

A citizen may be restricted by the court in legal capacity in accordance with the procedure established by civil procedural law and with the establishment of guardianship provided that, firstly, he has an addiction to gambling or abuses alcohol or narcotic drugs and, secondly, consequently, puts his family in a difficult financial situation. At the same time, the limitation of legal capacity is not the moral aspect of preventing alcohol consumption, but the protection of the property interests of the family. So, for example, if a single citizen is abusing alcohol and consequently dispossessing his own property, drastically worsening his financial situation, one can raise the issue of his treatment, but there is no reason to limit his legal capacity. After the court decision on recognizing a citizen as a person with limited legal capacity, such a citizen has the right to make only small household transactions on his own, he can only make other transactions with the consent of the trustee. The trustee receives and spends his earnings, pension and other incomes of a citizen who is limited by the court in capacity, in the interests of the ward in the manner provided for in Art. 37 GK. However, such a citizen independently bears property responsibility for the transactions he has committed and for the harm caused to them.

Limitation of legal capacity is canceled by the court on the grounds of falling off of these grounds, by virtue of which the citizen was limited in capacity. On the basis of the court decision, the guardianship established above it is also abolished (Article 30 of the Civil Code).

The state powers for guardianship and trusteeship are exercised by the executive authorities of the subject of the United States or by the local self-government bodies appointed by them in the event , if they are authorized by the law of the United States entity for guardianship and trusteeship under federal laws (article 34 of the Civil Code). Their functions, rights, duties and activities are regulated in detail in Art. 31-41 CC. In particular, according to paragraph 3 of Art. 34 of the Civil Code, the guardianship and trusteeship body at the place of residence of the wards oversees the activities of their guardians and trustees.

According to the norm of paragraph 2 of Art. 35 Civil Guardians and Trustees can only be appointed adults of capable citizens. Citizens who are deprived of parental rights, as well as citizens who have, at the time of establishment of guardianship or custody, a criminal record for an intentional crime against the life or health of citizens can not be appointed guardians and trustees. The guardianship and trusteeship responsibilities for guardians and trustees are performed free of charge, except in cases provided for by law. At the same time, guardians and trustees of under-age citizens are required to live together with their wards. Separate residence of a trustee with a trustee who has reached the age of 16 is allowed with the permission of the guardianship and trusteeship body, provided that this does not adversely affect the upbringing and protection of the rights and interests of the ward (clauses 1-2 of article 36 of the Civil Code). As representatives of the ward, guardians and trustees have the right to dispose of the incomes of the citizen of the ward (except for the incomes that the ward is entitled to dispose of independently) exclusively in the interests of the ward and with the prior permission of the guardianship and trusteeship body. Guardians and trustees are also required to obtain prior authorization from the guardianship and trusteeship agencies for transactions involving: a reduction in the property of the ward (for example, alienation of property, lease, pledge); refusal of the rights belonging to the ward; division of its property or separation of shares from it, etc. Without the prior permission of the guardianship and trusteeship authority, the guardian or guardian has the right to spend only monthly on the maintenance of the ward his money within the limits of the subsistence minimum amount, I will strangle the population as a whole in the United States. According to Art. 4 of the Federal Law of 24.10.1997 No. 134-FZ "On the Subsistence Minimum in the United States" the size of the subsistence minimum will suffocate the population and the main socio-demographic groups of the population as a whole in the United States and in the US subjects (with some exceptions stipulated by this Law) is determined quarterly on the basis of the consumer basket and data of the federal executive authority on statistics on the level of consumer prices on food products and consumer price indices for food, non-food products and services, and expenditures on compulsory payments and fees. The procedure for calculating such a minimum is established by the US Government. So, according to the decision of the US Government of June 27, 2013 № 545 "On the establishment of the subsistence minimum, I will strangle the population and the main socio-demographic groups of the population as a whole but in the United States in the 1st quarter of 2013", the size of the subsistence minimum will suffocate the population as a whole for the United States for the 1st quarter of 2013 is set at 7095 rubles.

In accordance with paragraph 3 of Art. 37 Civilians, guardians and trustees, as well as spouses and close relatives, are not entitled to enter into transactions with the client, except for the transfer of property to the trustee as a gift or for free use, and also to represent the trustee at the conclusion of transactions or conduct of court cases between the trustee and the spouse of the guardian or guardian and their close relatives. It is also important to say here that after the entry into force of paragraph 4 of Art. 37 CC (March 2, 2015) the guardian will be able to dispose of the property of the ward, first of all based on the personal opinion of the ward himself, and if it is impossible to establish it, taking into account information about his preferences received from the parents of such a citizen, his former guardians, who rendered services to such a citizen and conscientiously performed their duties.

If the client possesses immovable or valuable movable property that requires special care and management, the guardianship and trusteeship authority may determine the manager and enter into a trust management agreement with such property (Article 38 of the Civil Code). The appointment of a trustee may be due not only to the special properties of the property of the ward, but, in particular, to the property of the ward in another locality, which prevents the appointed guardian or trustee from managing this property. From the composition of the property of the ward, which is under the care of the guardian or trustee, property transferred to trust management is excluded. The Trustee performs its functions on the basis of a trust management agreement concluded with the guardianship and trusteeship authority, which should provide for the source and amount of remuneration to the trustee, its liability and rights with respect to the property.

The procedure for the release and removal of guardians and trustees from the performance of their duties is regulated by the norms of Art. 39 of the Civil Code. In particular, the guardianship and trusteeship agency exempts the guardian or curator from performing his duties in cases of return of the minor to his parents or his adoption. When the ward is placed under supervision of an educational organization, medical organization, organization that provides social services, or other organization, including an organization for orphans and children left without parental care, the guardianship and trusteeship agency releases the previously appointed guardian or curator from fulfillment of his duties, if this does not contradict the interests of the ward (clause 1, article 39 of the Civil Code). Also, the guardian or curator may be released from the discharge of his duties on the initiative of the guardianship and trusteeship body in the event of a conflict between the interests of the ward and the interests of the guardian or guardian. In accordance with paragraph 3 of Art. 39 of the Civil Code of this article improper performance of guardian (trustee) duties also entails the removal of the guardian (trustee) from the performance of their duties. Such a decision is authorized to accept the guardianship and trusteeship authority, which, along with the removal of the guardian or guardian from the performance of guardian (trustee) duties, can take the necessary measures to bring the guilty citizen to the responsibility established by law.

Termination of guardianship and trusteeship is regulated in Art. 40 GK. Specifically, custody terminates :

• over minors - automatically after reaching the age of 14 (replaced by guardianship);

• over incompetent mentally ill persons - on the basis of a court decision to recognize them as capable in case of recovery (clause 1, Article 40 of the Civil Code, clause 3, article 29 of the Civil Code).

• Guardianship is terminated:

• over minors - upon reaching the age of majority, when the minor enters into marriage or in case of emancipation (clause 3, Article 40 of the Civil Code);

• over adults who are limited by their legal capacity - on the basis of a court decision to abolish the limitation of legal capacity.

Guardianship and trusteeship are also terminated in the event of the death of the ward or his announcement to the deceased.

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