The provisions of Federal Law No. 49 amended Art. 37 of the Civil Code of the Russian Federation. At present, the trustee / guardian is not entitled to dispose of the ward's property (including money) without obtaining the prior consent of the authorized structure (it is the guardianship and trusteeship body). Let us consider further the explanations to Art. 37 of the Civil Code of 2015
General information
Minor wards (14-18 years old) have the right to independently manage their own income (scholarship, earnings, etc.). To make any transactions with their funds, they do not need to obtain consent from a guardian or trustee. All other wards (including adults) do not have this right.
Persons acting as guardians of minors may dispose of their income. However, this right is exercised with some restrictions. Exceptions are enshrined in paragraph 2 of article 28 of the Civil Code. Guardians of incapacitated entities may dispose of all types of income of the wards. In this case, no restrictions are provided. A person with limited legal capacity may perform administrative actions with his money with the consent of the trustee.
Resolution
Regardless of the type and volume of income, to dispose of them requires the consent of an authorized structure. This body, however, may consider that it is more advisable to issue a general permit. This is a kind of manifestation of trust.
A general permit may be issued in the form of an independent document or be included in the act of appointing a citizen as a trustee or guardian.
The consent may fix the maximum amounts allowed for spending on a monthly basis and the purposes for which they will be directed. For example, it can be food, the purchase of medicines, clothes, shoes, etc.
Nuances
Legislation classifies funds of any kind as income for a ward. They include, in particular, pensions, scholarships, alimony, allowances, other social benefits, and the amounts received from property management.
It should be said that the trustee / guardian does not have the right of ownership of objects belonging to the wards. This also applies to money. Accordingly, the funds paid, for example, for the maintenance of wards of children, belong to themselves. Their spending, according to paragraph 1 of Art. 37 of the Civil Code of the Russian Federation, carried out exclusively with the consent of the authorized structure. Many experts agree that it is more expedient to issue one permit for managing the wards' property in the future.
Transactions
The rules for concluding contracts on behalf of the ward are contained in paragraph 2 of Art. 37 of the Civil Code of the Russian Federation.
Trustees and guardians, according to the norm, it is necessary to obtain permission for a variety of actions committed in the framework of procedural and material legal relations. The general rule enshrined in the second paragraph of Art. 37 of the Civil Code, is as follows. The trustee / guardian must obtain the consent of the authorized body for all actions upon completion of which the value of the ward's property may decrease.
Permission is required for:
- Alienation of property (including as a result of gift or exchange).
- Transactions whose execution entails a waiver of rights belonging to the ward.
- Refusal of claims filed in the interests of the ward.
Property value may decrease due to other actions. For example, such consequences arise when the applicant refuses to recover within the framework of enforcement proceedings, rights to land allotment, etc.
Special cases
In the analysis of Art. 37 of the Civil Code of the Russian Federation with the comments of lawyers, it should be noted that specialists emphasize that, despite the fact that not all actions of legal representatives can lead to a decrease in the price or volume of property of the ward, permission must be obtained in any case.
Part 1 of Article 21 of the Federal Law No. 49 states, in particular, on the provision of property for rent, lease, pledge, gratuitous use, the division or allocation of a share, the conclusion on behalf of the ward of a settlement agreement with the defendant in enforcement proceedings, where the ward acts as a recoverer, issuance of power of attorney, etc.
Quite often, transactions are concluded in small amounts. Accordingly, obtaining permission from the authorized structure each time significantly complicates the person's fulfillment of his duties to the ward. The legislation provides for the possibility of issuing consent not only for one but for several legal actions that may take place in the future.
Abuse prevention
Guardians and trustees due to their legal status can influence the formation of the will of the wards. In order to avoid abuse of authority in paragraph 3 of Art. 37 of the Civil Code of the Russian Federation a special ban is enshrined. Trustees and guardians cannot make transactions with wards, except donations, in which they act as donors.
In the third paragraph of Art. 37 of the Civil Code of the Russian Federation also fixed restrictions associated with representation. The trustee / guardian may not act on behalf of the ward in transactions, as well as in legal proceedings with his relatives (spouse, etc.).
Important point
In practice, a situation often arises when transactions prohibited by paragraph 3 of Art. 37 of the Civil Code, it is necessary to commit. For such cases, Federal Law No. 49 provides for the possibility of replacing a trustee or guardian.
In accordance with Part 1 of Article 8 of the said Law, the tasks of the authorized structure include the representation of the interests of legally incapable adults as well as minors. This right shall be exercised if the actions of their immediate representatives contradict the legal norms or interests of the wards themselves.
Accordingly, the legislation in principle does not exclude the sale of property of the guardian, for example, to the spouse of the guardian. But on behalf of the owner (ward), only the authority of trusteeship and guardianship is entitled to make this transaction. It will be he who will be fully responsible for the decision.
Consequences of non-compliance
Previously, in the event of a dispute, the applicants referred to the provisions of article 168 of the Civil Code. According to the norm, a transaction concluded without proper permission is recognized as null and void. But in practice, the implementation of the rules on the invalidity of such contracts was significantly complicated, since it became necessary to take into account the legal rights and interests of bona fide purchasers of property of the ward.
Currently, Federal Law No. 49 establishes a special consequence of failure to comply with legal requirements by trustees and guardians. According to part 4 of article 21 of the normative act, if it turns out that the contract on behalf of the ward was concluded without the prior consent of the authorized body, the latter must immediately file a claim with the court to terminate such an agreement. An exception is provided for transactions concluded to the benefit of the ward.
It is worth saying that the requirement to terminate the agreement has significant differences from invalidating it. We turn to the Civil Code. Under article 450 of the Code, a transaction may be terminated at the request of one of the participants in a judicial proceeding in cases stipulated by law. Such a situation is provided for in amended Federal Law No. 49. The general consequence of the termination of the contract is the lack of the possibility of bilateral restitution (return of the transaction). However, the law may provide for another rule.
So, in Federal Law No. 49, it is established that upon termination of an agreement concluded with violations of requirements, property that belonged to the ward is subject to return. Losses incurred by the parties to the transaction are compensated by the trustee or guardian who has not complied with the requirements of the law.