Law 48-FZ "On guardianship and guardianship" with comments
48-FZ "On guardianship and guardianship" regulatesrelations related to the establishment, implementation and termination of guardianship and custody of minors. This article will describe the main provisions of the draft law.
2 Article ФЗ No. 48 gives the basic concepts,used in the normative act. What is custody? According to the Law, this is a special kind of arrangement of young citizens 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. All the totality of legally significant actions carried out by guardians in relation to the child is called guardianship.
The concept of guardianship is somewhat different fromguardianship. According to the Law, this is a special kind of arrangement of under-age citizens who are not juveniles (aged 14 to adulthood). The legal representatives of a legally incompetent person appointed by state bodies should fully assist in the implementation of the rights and duties of the ward. Wards are referred to as a citizen guarded by legal representatives.
Tasks and principles of state regulation
In accordance with the 48-FZ "On guardianship and trusteeship", the state authorities should in every way promote the juvenile institutions. Thus, the tasks of state regulation should include:
- ensuring the exercise of their powers by guardians and trustees;
- ensuring an optimal standard of living for persons who are under the care;
- ensuring the qualitative identification of citizens in need of custody or guardianship;
- protection of freedoms, rights and legitimate interests of the patients;
- state support of legal entities and individuals, whose duties include the promotion of custody and guardianship.
FZ No. 48 (as amended on November 28, 2015) also fixes 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 clients;
- free acceptance by citizens of their duties in the area under consideration.
Separately it is necessary to tell about the duties and rights of the relevant state bodies.
Rights and duties of guardianship and trusteeship bodies
Law 48-FZ "On Trusteeship" in Chapter 2 fixesthe main powers and tasks of state bodies exercising powers in the sphere in question. 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 by citizens;
- quality supervision of the performance of their duties by guardians and trustees;
- control over the preservation of the property of minors under the supervision of the relevant persons or organizations.
It is also worth noting that, in accordance with the 48-FZ "On guardianship and trusteeship", the state bodies in question have the following types of rights:
- appeal to the courts with a statement on the need to recognize individual citizens as incompetent or partially capable;
- legal release of trustees or guardians from the performance of their duties;
- representation of the interests of minors during the proceedings;
- issuance of permits for joint or separate residence 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 subjects of the normative act.
On the legal status of trustees and guardians
48-FZ "On guardianship and guardianship" fixesnorms that characterize the legal status of subjects of the law. Thus, Article 10 deals with the procedure for determining citizens who have the opportunity to become legal representatives of a minor. Here are the following requirements:
- the guardian or trustee gives written consent;
- the preliminary stage of guardianship has been successfully passed;
- guardian or trustee is a capable, adult, capable citizen of a labor activity.
Federal Law No. 48-FZ "On Guardianship and Trusteeship" establishes a fairly large number of rules, rules and specifics related to the establishment and regulation of relevant processes.
Separately, it is worth highlighting the rights and duties of citizens themselves, who are legal representatives of minors.
Tasks of legal representatives
Article 15 states that powers and dutiesTrustees and guardians are regulated by the Civil and Family Codes. Guardians, according to the law, are legal representatives of the child, and therefore are obliged to protect his rights and interests in every possible way. Citizens who have received the status of legal representatives, must promptly notify the appropriate authorities about the change of place of residence or temporary absence at the address.
Trustees and guardians are entitled to receivepreferential assistance in medical, educational, psychological, legal and any other field. Also, the law regulates the property rights of citizens. They will be discussed further on.
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. And on the contrary, neither the trustees nor the trustees can claim the property of the wards. This includes benefits, pensions, alimony, benefits and other social benefits.
Civil law establishes a generalownership of the property of a family consisting of wards and guardians. So, the guarded underage citizens 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 for their own personal interests.
It should be noted that the property of the wardsis under protection. The Federal Law No. 48-FZ "On Guardianship and Guardianship" fixes this norm. The protection of the property of a minor is carried out by his legal representatives. The inventory of the existing property must be compulsorily carried out.
Disposal of property
Guardians and trustees may dispose ofproperty of the wards 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 the funds of the ward to the bank account or purchase insurance. It is forbidden to enter into loan agreements or loan agreements on behalf of the person being guarded. The law speaks of the responsibility for transferring the property of a minor to a loan or use.
Article 20 states that immovable property can not be alienated except in the following cases:
- alienation of a rent favorable for a trust;
- compulsory recourse; recovery of collateral;
- alienation of real estate in cases of exceptional character (the need for expensive treatment of a ward, etc.);
- change of dwelling of the person to be guarded.
Article 22 provides for the right of a trustee to require the invalidity of transactions concluded by his client without the consent of the legal representative.
Supervision of the activities of legal representatives
48-FZ "On guardianship and guardianship in the RF" fixesthe need for supervision by the relevant government agencies for representatives of underage children. How does this supervision take place?
The guardianship and guardianship authorities shouldTo be guided by the terms 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 guardians, and conduct a qualitative examination of housing and living conditions. The safety of the property of the ward, the timeliness of satisfaction of his basic needs are verified. The duty of unauthorized persons to report to the internal affairs agencies on the facts of violation of the rights of a minor under the ward is separately stipulated. Similar rights are possessed by the wards themselves: they can appeal against the actions or inactions of their trustees or guardians in court.
Guardians and trustees must compileSpecial reports and submit them to the appropriate authorities no later than February 1 each year. The reports should contain information on the status of the property of the ward, the place of its storage or registration. The report is approved by the guardianship and trusteeship authority and is kept in the personal file.
According to 48-FZ of 24.04.2008 "On guardianship", trustees and guardians are responsible for making transactions on behalf of their wards. Responsibility in this case is regulated by civil legislation. Legal representatives of a minor must account for the harm done to the property of the ward. If the guilt of the guardians or trustees is established, the judicial authorities shall draw up a special act and present to the guilty citizen the demand to compensate the damages caused to the ward.
Separately, the responsibility of legal representatives is regulated by the Criminal Code of the Russian Federation. For causing harm to the mental or physical health of the person being guarded, the perpetrators must be brought to justice.
The responsibility of the guardianship authority itselfguardianship. This is indicated in Article 28 of the Federal Law of April 24, 2008 (48-FZ "On Guardianship and Trusteeship"). Control over the instance is carried out by officials from the executive branch of the RF subject. So, if the guardianship agency caused harm to the wards as a result of inaction or unlawful actions, then the case will be initiated in accordance with the legislation of the Russian Federation.
On termination of custody or guardianship
In accordance with Article 29 of the 48th Federal Law "On Guardianship" (with comments and changes dated November 28, 2015), guardianship or custody must be terminated in the following cases:
- death of a ward or legal representative;
- expiry of the certificate of appointment of a trustee or guardian;
- the release or removal of a trustee or guardian from the performance of their duties.
Guardians or trustees may themselves refuse to perform their duties. The relevant government agency will release them if the following conditions exist:
- violation of the legitimate interests of the ward;
- improper performance of duties;
- detection of special violations by the state body.
Chapter 7 of the law in question fixes the main forms of state support for individuals and legal entities that exercise guardianship and custody of minors.
Here you can distinguish:
- setting the amount of benefits and benefits for the wards;
- determination of the amount of payments for the needs of legal representatives.
The amounts can vary depending on the region of the Russian Federation.