Differences between a guardian and a trustee

Who is a trustee and guardian

A guardian is a person who provides protection of rights, living conditions and care for people who are unable to do this themselves. He performs parental functions and resolves the child’s life issues.

People in need of care include the following:

• orphaned children under 14 years of age;
• incompetent citizens of any age.

Children need guardianship under the following circumstances:

• biological parents have been deprived of parental rights, are missing, are incapacitated, or due to serious illness are unable to fulfill their obligations;
• parents are absent for objective reasons (on a temporary business trip, hospitalized).

Guardianship can be temporary or permanent.

A trustee is a person who creates the necessary living conditions for the realization of the property and social interests of the child. Guardianship is established over children aged 14-18 and partially incompetent persons.

Official representatives of children have the right to claim many government benefits, payments and additional payments, many of which are established by local administrative authorities. If temporary guardianship has been issued, then the guardians are not entitled to financial support.

Official representatives of adults who are completely or partially deprived of legal capacity do not receive government payments, with rare exceptions.

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Differences between a guardian and a trustee

The difference between guardianship and trusteeship is as follows. The guardian independently decides all issues regarding the ward and bears full responsibility for his actions. The trustee resolves all issues of the ward together with him, coordinating with the ward all planned actions.

The guardian and trustee must perform the following duties:

• caring for the physical condition and health of the person under care;
• informing authorized bodies that the family is changing their place of residence;
• living with the person under guardianship (legislation allows a child to live independently if he is 16 years old and guardianship officials agree to this);
• annual reporting on the expenditure of funds that are transferred to the ward.

The guardian and trustee can manage the child’s money if the child agrees to do so. For this purpose, a power of attorney is usually issued.

The differences between guardianship and trusteeship also lie in the individual obligations of these persons.

The guardian has the right or obligation to:

• make transactions on behalf of the ward (except for those that can only be carried out in person - for example, transfer of property by inheritance);
• file a claim in court that the transaction made by the ward is invalid;
• bear property liability for damage caused by the ward, and be responsible for the child’s transactions.

The trustee is obliged or has the right:

• obtain permission for the ward to conduct transactions (except for those transactions that the ward can conduct himself);
• file a lawsuit in court to declare the ward’s transaction and its legal consequences invalid;
• bear subsidiary property liability.

The differences between a guardian and a trustee are summarized in the table:

At the same time, the legislation establishes prohibitions that apply to both guardians and trustees:

• You cannot use the property of those under guardianship for personal interests;
• You cannot enter into credit or loan agreements on behalf of the ward acting as a borrower;
• It is impossible to draw up an agreement on the transfer of the property of the person under guardianship for use if the period of operation is at least 5 years, as well as on the delivery of the object as collateral, for rent, or for legal transactions.

Difference between guardian and trustee

In practice, many do not notice the difference between guardianship and trusteeship, but there are significant differences here. As a rule, the direct guardian can act only with the permission of the ward, while the guardian, in turn, does the same with the permission of the guardianship and trusteeship authorities. In addition, guardianship is carried out over incapacitated persons who are deprived of the ability to manage their capabilities due to mental impairment or health. Trustees, on the other hand, do much that is necessary for incapacitated citizens who sensibly assess the situation and can do a lot on their own, but due to circumstances are deprived of such an opportunity.

Important. Separately, guardianship should be highlighted for organizations whose legitimate interests are represented on the basis of a relevant agreement; in turn, guardians are not vested with such powers.

Requirements

Only a legally capable person over 18 years of age has the right to become a guardian or trustee.

The legislation establishes the category of persons who cannot formalize guardianship or trusteeship:

• minors (even if they have acquired full legal capacity - for example, they have registered an individual entrepreneur or registered a marital union);
• persons who have been deprived of parental rights (or limited in them);
• people diagnosed with drug/alcohol addiction;
• people who were already guardians/trustees in the past, but were subsequently removed from fulfilling these obligations;
• people who were adoptive parents in the past, but due to illegal actions they lost this status;
• people suffering from a serious illness, as a result of which they are unable to provide full care for their child.

Registration of guardianship/trusteeship

Anyone wishing to take custody or guardianship must provide the following documents to the territorial department of social protection of the population:

• statement;
• a certificate from the place of employment containing information about the position and average earnings for the year;
• certificate of other sources of income for unemployed persons (for example, receipt of a pension);
• an extract from the house register or other title documentation for housing;
• a photocopy of the financial personal account from the residential address;
• a certificate stating that the applicant has no criminal record (issued at the police department);
• medical report on the current state of health;
• a photocopy of the certificate of registration of the marital union;
• written consent to the registration of guardianship/trusteeship on the part of other family members (including children over 10 years old);
• a certificate stating that the residential premises comply with all standards and requirements;
• autobiography of the applicant.

1. How to obtain guardianship for a child? 2. Guardianship of an elderly person

Guardian and trustee: what is the difference?

A minor child who has lost his parents cannot live independently; an appropriate form of guardianship or trusteeship must be established over him within one month. His place of residence is also determined.

A guardian is effectively a parent. He solely takes care of the material wealth, psychological health, education, and upbringing of the person under his care.

If a child is taken under guardianship or guardianship by relatives, they are entitled to a monthly payment in the amount of the average subsistence minimum. The guardian bears full responsibility for the ward. A caregiver is essentially a mentor.

He, together with the minor, makes decisions on property relations and spiritual and moral education. Responsibility is divided in half. Throughout the entire period, the process is carried out under the control of guardianship authorities and psychological services.

The state imposes a number of very serious requirements on a candidate for guardianship:

• to the living area;
• to material support;
• to age;
• to health status;
• to legal capacity;
• to moral character.

After receiving a guardianship certificate, the legal representative is vested with the rights and responsibilities in relation to the ward:

• receive payment from the state and accountably spend these funds in the interests of the child under guardianship;
• represent interests in government agencies and in court;
• all profits generated by the property of the ward should be spent in his interests;
• live together with the child under guardianship;
• take care of physical and mental health.

After reaching the age of fourteen, the guardian automatically becomes a trustee. Also, a guardian is appointed for a child who has reached fourteen years of age if he has lost his parents or legal representative, and there is no one to take care of his upbringing and financial support.

In this case, the minor, who finds himself in a difficult life situation, has the right to payments from the state and some benefits.

The state sets a number of less serious requirements for a candidate for guardianship:

• health status;
• no criminal record;
• having your own home;
• have no addictions or psychological risks.

After establishing the status, the trustee has a number of rights and obligations in relation to the ward:

• manage the property of the ward in order to preserve and increase it;
• make transactions on behalf of the ward, taking into account his opinion;
• control the pupil’s lifestyle and social status;
• protect life and health;
• create conditions for comprehensive development and education for spiritual, moral and psychological formation;
• protect interests and rights in court, before third parties or in government. institutions.

Expert opinion

Maria Lokshina

Family law expert since 2010

A guardian or trustee is prohibited from making transactions of a material nature aimed at wasting the property of the ward.

Release from obligations

A guardian and trustee may be released from performing their duties in the following cases:

• the child was adopted or returned to his parents;
• a person improperly fulfills his obligations, leaves the child without supervision and assistance (in this case, he will not only be deprived of the appropriate status, but will also be held accountable depending on the severity of the consequences);
• the guardian or trustee himself asked to be released from fulfilling obligations to the child.

Help for guardians and trustees

In accordance with the Federal Law “On Guardianship and Trusteeship”, the work of a guardian and trustee is not paid; he can enjoy some benefits and compensation. However, in individual cases and in the interests of the child, the guardianship authorities may enter into an agreement on the payment of benefits to him. Funds for benefits can be allocated from income from the ward’s property, assistance funds, or from the regional budget. The size of the benefit is established by the Government of the Russian Federation. In what cases and how to pay such benefits is decided by local authorities.

Sometimes, at the request of the guardian, the guardianship authorities allow the use of the ward's property for personal interests. In this case, an agreement must be concluded, which specifies exactly what the guardian can use, for how long and under what conditions.

Apartments are not provided to guardians and trustees for their activities. A guardian or trustee must live with the ward in his own living space. But if

• he lives far from where the child or mentally ill adult lives;
• the guardian’s housing does not meet the requirements of the guardianship authorities;
• it is in the interests of those under guardianship to remain living in their own house or apartment,

then, again on a contractual basis, the guardian or trustee uses the living space of the ward during the performance of his duties. This is especially often practiced when relatives take custody of the child.

What is the difference between a guardian and a trustee? Only in relationships with the student.

Otherwise, for both, it is daily work, noble and grateful, to help children and adults who are helpless in front of the realities of life and in need of protection.

Features and nuances

In addition to guardianship and trusteeship, there is another form of providing for people - patronage. This form is established for persons over 18 years of age who suffer from serious health problems and cannot protect their interests or exercise their rights. The foster relationship is not associated with the limitation of legal capacity or its complete deprivation; there is no need to exercise full control over the ward. A person makes decisions independently, without obtaining permission, and an assistant only facilitates their implementation.

A civil contract is drawn up with the assistant, the format of which depends on the services provided. Thus, a trust management agreement or mandate may be concluded. The contract is concluded for a limited period, services are provided on a paid basis. Once the contract expires, the patronage is no longer valid.

To apply for patronage, you must contact the territorial department of the guardianship authorities with an application and documents.

Definition of trustee

Here we are talking about a person who is engaged in caring for the privileges, interests, needs and requirements of another person or an entire organization. Official registration of status is provided. As a rule, in practice it is used in such an understanding as a person who protects the interests and rights of incapacitated or minor persons.

In this case, these representatives also have specific rights and obligations, but cannot claim material support from the state, with the exception of a certain number of points. It also does not imply permanent guardianship over the ward, which he needs for his life.

Rights and responsibilities of a trustee

This provides for specific tolerances that are established by the current Civil and Family Codes of the Russian Federation, namely:

1. First of all, you need to highlight the option to represent legitimate interests;
2. the ward has the right to participate in transactions;
3. certain property privileges are provided for these persons;
4. in addition, there are corresponding hereditary privileges;
5. certain government benefits are provided;
6. access to dispose of the ward’s property on his behalf;
7. Such representatives have corresponding personal privileges.

In practice, specific obligations are also provided. This provides for the need to report directly to the guardianship and trusteeship authorities. Additionally, it is required to protect not only the interests, needs and needs of the ward, but also his property.

Important. Most often, caregivers are also provided with the opportunity to choose the direction to provide the necessary protection for the needs, rights and requirements of their ward.