In Russia, citizens can enter into various legal relations arising in the political, economic, social spheres. At the same time they have certain duties and rights.
By general rules, the subject receives civilrights and duties from 18 years. In exceptional cases, emancipation is allowed. It means the acquisition of legal capacity at 16 years. Since that moment, the subjects have the right to independently conclude contracts, dispose of their property, participate in the socio-political life of the state. In this case, every adult person is responsible for the actions he has committed.
In practice, however, situations are possible wherethe citizen, although he reached the age of 18, but due to a physical or mental disorder, can not independently bear the responsibilities and exercise the rights. In such cases, he is recognized as fully or partially incompetent and he is appointed a trustee or guardian.
Also incompetent are all persons who do notAge of majority, because of their age. Their interests are, as a rule, parents (adoptive parents). If such representatives are absent from the person, guardianship or guardianship is also established over him. Let's consider their features.
Realization of rights and dutiesincompetent persons are regulated by the rules of civil and family law. Guardianship and trusteeship are the most important social institutions. The Civil Code defines general provisions regulating their functioning. In the UK, attention is primarily paid to guardianship and guardianship of minors.
In addition, Federal Law No. 48 is in force in Russia. This normative act regulates relations exclusively related to guardianship and trusteeship.
Every participant in civil law relations must have full legal capacity. Together they form the legal personality of a person.
Legal capacity arises from a citizen withbirth and ends with his death. Ability, as mentioned above, comes from a certain age. From the age of 16 or 18 the citizen becomes able to acquire his rights and carry responsibility for their implementation. In other words, a person understands the meaning of his behavior and assumes its consequences.
The ability to acquire rights and perform duties requires certain experience. It is the poet's legislation that links the onset of legal capacity with the achievement of a specific age.
In the literature there are different opinions aboutdefinitions of these institutions. The most appropriate position can be considered the position of NM Ershova. It defines custody and guardianship as an integrated branch of civil and family law. It provides for all kinds of care for citizens who need special forms of protection of their interests and rights.
Guardianship and guardianship have a close relationship with each other.friend. In both cases, we are talking about partially or completely incompetent persons. The provisions governing custody and guardianship are contained in the same legal documents. At the same time, both institutions provide for general rules for the appointment of incapacitated persons, norms that fix their duties and rights.
The bodies of guardianship and trusteeship are engaged in solving the issues related to providing care for the incompetent.
There are a number of signs that guardianshipis different from guardianship. In the first case, a person who cares for a needy citizen commits all legally significant actions for him. The trustee, in turn, is considered a kind of assistant incompetent.
In addition, the age of the face forestablishment of custody and guardianship. Only children up to the age of 14 may be assigned guardians. If the child is 14-18 years old, guardianship may be established over him.
The guardian or trustee may become a citizen,who has reached the age of majority and is fully capable. The selection of candidates is handled by the guardianship and trusteeship agency located at the place of residence of the person in need.
According to the Federal Law "On Guardianship and Guardianship", persons who are legally incompetent can not become persons:
In the latter case, we are talking about diseases covered by a special List approved by Government Decision No. 542 of 1996. Among them:
Departments of guardianship and guardianship with specialcarefully select candidates. First of all, the applicant's compliance with the requirements of the law is assessed. Of no small importance are the personal qualities of the subject.
The candidate should understand that care forpartially / completely incompetent person - this is a big responsibility. It requires not only time, but also strength and patience. Legislation allows the approval of a candidate with the person in need, if possible.
Of particular importance is the identity of the applicantthe establishment of guardianship and custody of a mentally ill person. The fact is that it is more expedient for a person who cares for such a citizen to live with him together. This, in turn, entails many domestic problems, and sometimes creates a threat to the life of the guardian / curator.
Any person who wants to take care ofin need of a person, it is necessary to have the skills to communicate with sick people, the experience of using different, including psychotropic medications, knowledge of the symptoms of certain diseases.
Best of course, with emergingdifficulties are cope with the relatives of a person in need of care. If there are no close people with the subject, the candidate is selected from among the persons who have certain experience and who wish to take on the corresponding duties.
The legislation stipulates stricter requirements for persons wishing to establish custody and / or guardianship over the child. The social side of the issue here is of particular importance.
For a minor, a person must be createdconditions that are as close to family as possible. Accordingly, preference is given to married couples. It is desirable that the minor and future guardian / curator are familiar. This will help establish trustful, friendly relations. In this regard, if there is such an opportunity, the guardian or trustee is better to choose from the relatives of the child or persons with whom he is very familiar.
Particular importance for the regulation of legalthe status of trustees and guardians is required to obtain the consent of the person for the performance of the relevant duties. In the previous legislation, this provision was absent. For the first time the requirement for the voluntariness of the will of a citizen was fixed in the 1967 CBS.
This situation was stipulated by the following.The first set of laws on family and marriage was approved in 1927. At that time in the country the percentage of homeless children was very high. Accordingly, the guardianship and trusteeship agencies had the most important tasks - to save children from death and hunger. This could easily cope with ordinary citizens. Meanwhile, in practice there have been few cases of compulsory appointment of persons by trustees or guardians.
By general rules, guardianship and trusteeshipare established at no charge. The maintenance of a partially or completely incompetent citizen is carried out at the expense of the allowance, the pension accrued to him, or his property.
Meanwhile, the guardianship and trusteeship authority of the district,in which the needy lives, a civil law contract may be concluded with the applicant, involving the payment of a certain remuneration. Of course, this should be done solely in the interests of the person who is being looked after.
The performance of duties by a citizen begins with the date of the decision to appoint him a representative of the ward. In this case, the subject receives a special certificate.
Acting as a legal representative, he is entitled to perform all actions that the person himself could have performed if he had been active.
In the legislation, however, a number ofrestrictions. They are necessary to protect persons in need from the unlawful actions of their guardians or trustees. For example, according to clause 2 of Article 37 of the CC, the guardian is not entitled to enter into, and the trustee - to consent to the performance of certain transactions. Speech, in particular, about donating, exchanging, selling, renting and other administrative actions, if they entail a decrease in the property belonging to the ward. To make such transactions it is necessary to obtain permission from the guardianship and trusteeship authority.
At the same time, it should be borne in mind that even the consent of these structures can not be an absolute guarantee of the legality of the transaction.
It is also carried out with the consent of the guardianship authority. At the same time, any administrative actions must be carried out in the interests of the ward.
Pensions, allowances, other social payments, as well as income from the use of property (letting, for example) are included in the incomes of a partially / completely incompetent citizen.
The legislation established several morethe most important guarantees for the wards. So, in the norms the instruction is fixed that neither the guardian / guardian nor their spouses and relatives can conclude any transactions with the person being cared for. An exception here is only the transfer of property to the ward as a gift.
Guardians / custodians can not be representatives of the guardian in transactions, the second side of which is their relatives and spouses.
Guardians / trustees must live withwards. This is especially important if we are talking about underage citizens who need constant care. Joint living provides an atmosphere that contributes to the effective education of a minor.
If we talk about mentally ill people, thenthe constant presence of a guardian / guardian next to them will allow us to provide medical assistance in a timely manner, to monitor the timely administration of medicines, and the observance of the diet. Equally important is ensuring the safety of both the ward and the people around him.
In the Rules of registration of subjects in the Russian Federation at the address of residence it is established that the residence of the ward at the place of residence of the guardian / guardian must be carried out unhindered, as well as vice versa.
Separate residence of citizens is allowed, ifthe guardian has reached 16 years of age and if this does not adversely affect the upbringing or protection of his interests. For this it is necessary to obtain permission from the guardianship and trusteeship authority.
Joint living of persons ensures properprotection of the rights of the ward to the home. The partially incomplete owner of an incompetent citizen may become a contract (sale, gift, etc.) or a law (inheritance of property). Guardians and trustees are obliged to take all necessary measures to ensure the realization by the persons being entrusted with their rights to use, dispose and own the dwelling properly.
As mentioned above, all issues related toprovision of adequate care for people in need, territorial guardianship and trusteeship bodies decide. The activity of these structures is regulated by Article 6 of Federal Law No. 48.
In point 1.1 of the rule states that local authorities may be vested in guardianship and trusteeship. In practice, this happens rarely. Usually, in each municipality there is a territorial department of guardianship and guardianship. The address can be found on the official website of the municipality. In the Moscow region, there are many such departments. For example, only in the Central District of Moscow there are 10. Some of them are engaged in issues of custody of minors and pensioners. For example, on the street. Novo-Basmannaya, 37 and on Gorokhovaya St., 5 there is such a guardian council. But on the street. Bakhrushin, 20 there is a department dealing with the issue of the installation of minors only.
