GUARDIANSHIP AS PROTECTION OF ENDANGERED CHILDREN AND ADULTS

In everyday communication, the term guardianship and the term exercise of parental rights are often misinterpreted. In the Family Law of the Republic of Serbia, guardianship and exercise of parental rights are two completely different terms. Although in lay communication you can often hear that one or the other parent “got custody of the child”, the word custody in the context of the Family Law does not actually refer to entrusting, raising and keeping a child to one parent during a divorce. In other words, when we use the word custody in these situations of entrusting a child, we mean the exercise of parental rights, that is, the independent or joint exercise of parental rights over a minor child.

Guardianship, on the other hand, as a special legal institute, is regulated, like the exercise of parental rights, by the Family Law of the Republic of Serbia, but the procedure of placing a person under guardianship has a completely different meaning and meaning than the procedure for exercising parental rights.

In the part of the text that will deal with the obligations of guardians of minors, you will learn about the different duties that each guardian must perform towards his ward, but also see that, although they are largely similar to parental obligations towards minor children, they differ in many ways from the obligations parents.

Another group of cases when a person is placed under guardianship are cases of elderly persons, but also of younger (adult) persons who are unable to take care of their rights and obligations due to illness or disturbances in psychophysical development. So, this type of procedure is most often initiated by adult children, who want one of their parents (or both parents) who are already in advanced years to be placed under guardianship so that they can take care of them, increase their pension (in cases when these persons have difficulty moving or do not move at all or when children fear how their parents will dispose of their pension), place them in a home for the elderly or prevent the possibility of such a person concluding a contract that would harm himself or his property.

What is less known is that there are equally frequent cases when the brother or sister of a person who is, for example, middle-aged and who always has some kind of disturbance in psychophysical development, decides to put that person under guardianship when his condition with worsened over the years and, consequently, the danger of him doing something to his own detriment increased.

The reason why we emphasize this is that, in conversations with numerous clients, we concluded that guardianship of an adult is often only for people who, due to their age, are no longer able to take care of themselves independently. And in fact, it is very important to understand that the years of life of adults have no significance compared to the state of psychophysical health of a person and the ability of that person to adequately take care of their own rights, obligations and interests.

When we talk about guardianship, it is important to distinguish between the following basic concepts:

• Protégé – a person who is placed under guardianship
• Guardian – a person who takes care of a ward

The procedure itself ends with the adoption of the Decision on placement under guardianship by which the guardianship authority – the competent Center for Social Work appoints a guardian and decides where the ward will be placed. This solution necessarily includes a care plan.

Basically, we distinguish between two types of guardianship:

• Custody of a child without parental care (minor ward)
• Guardianship of an adult who is not legally capable (adult ward)

In accordance with our Family Law, the following persons must be placed under guardianship:

• minor children without parents (parents have died, are unknown or their whereabouts are unknown)
• minor children whose parents are deprived of parental rights or are incompetent
• adults who incompetent to take care of themself

As we can see, a minor child who has no living parents or whose parents are unknown must be appointed a legal guardian. In addition, in a situation where a minor child has living parents, if they are deprived of parental rights for any reason, it will be necessary to place the child under guardianship. What is important to emphasize is that the role of that guardian is different from the role of a parent who is exercising parental rights.
There are numerous reasons why parents can be deprived of parental rights, and physical, sexual or emotional abuse, inciting the child to commit crimes, abandoning the child and not supporting the child are just some of them.

On the other hand, an adult is placed under guardianship if, either due to illness or due to disturbances in psychophysical development, his actions directly endanger his own rights and interests or the rights and interests of other persons. In that situation, an adult will need a guardian because such a person is incapable of taking care of himself.

– Who can be appointed as a guardian?

As already mentioned, the guardian is appointed by the guardianship authority. For the guardianship authority to appoint a person as a guardian, it is necessary that that person has the personal qualities and abilities necessary to perform the duties of a guardian, as well as that he has agreed to be a guardian.

The guardianship body will first try to place the ward in a relative’s family, so that the ward’s spouse, relative or foster parent is primarily appointed as the guardian, unless the ward’s interest dictates otherwise. For example, if the ward has only one relative who is unemployed and does not have enough funds even for himself, it is in the interest of the ward that another person is appointed as guardian.

The guardianship authority can even decide not to appoint a guardian for the person under guardianship, but to have the duty of guardian performed by the Center for Social Work.

Also, it is important to emphasize that a child, that is, a minor ward, has the right to propose a person who will be appointed as his guardian, but only if he has reached the age of 10 and is capable of reasoning.

Finally, we will mention that one person can be the guardian of several wards, but only if he agrees to it and if it is in the interests of the wards. For example, if minor children lose their parents in a traffic accident, and they have a grandfather who meets all the conditions to be appointed guardian, it is in the interest of the children not to be separated, that is, that both children be under his guardianship.

– Who cannot be a guardian?

The following persons cannot be appointed guardians:

• a person who is completely or partially deprived its rights to take care of its own legal affairs
• a person who is completely or partially deprived of parental rights
• a person whose interest’s conflict with the interests of the ward
• a person who, considering his personal relations with the ward, the ward’s parents or other relatives, cannot be expected to properly perform the duties of a guardian.

– What obligations does the guardian have?

First, the guardian is obliged to conscientiously take care of the ward. Caring for a resident includes the following:

• taking care of the resident’s personality
• representation of residents
• obtaining funds for the maintenance of residents
• management and disposal of the property of the ward.

Caring for the resident’s personality

This obligation of the guardian implies that he must ensure that the care, upbringing, upbringing and education of the minor ward led to his training for an independent life as soon as possible, i.e. to the level that allows the ward to take care of himself independently.

If it is an adult protege, the guardian is obliged to ensure that the reasons for which the adult protege is deprived of legal capacity are eliminated, to enable him to lead an independent life as soon as possible.
Certainly, the guardian is obliged to visit the ward and to be directly informed about the conditions in which the ward lives.

Representation of residents

When it comes to the guardianship of a minor, unlike parents, the guardian must in some situations seek the prior consent of the guardianship authority. This will happen when the guardian decides on the ward’s education, undertaking some medical intervention on the ward and when it is necessary to give consent for undertaking legal affairs of a ward over the age of 14. The guardian must also obtain the prior consent of the guardianship authority when he undertakes legal affairs in which he manages and disposes of the income earned by a ward under the age of 15.

Obtaining funds for the support of residents

The guardian obtains funds for the support of the ward from various sources, namely from the ward’s income, funds received from persons legally obliged to support the ward, the ward’s property, social protection funds, as well as other sources.

In any case, the guardian is obliged to take all necessary measures to obtain funds for supporting the ward, but he is not obliged to support him.

Management and disposal of the residents’ property

The guardian manages the property and disposes only of the protégé’s property that the protégé did not acquire through work.

However, the guardian can independently perform only those tasks that fall under the regular management of the ward’s property, tasks that go beyond the scope of regular management of that property, as well as the possible disposal of the ward’s property, the guardian can only perform with the prior consent of the guardianship authority.

We also note that the capital of the ward’s property can only be used for his support or for the satisfaction of some other important interest of the ward, while income from the ward’s property, with the prior consent of the guardianship authority, can be used to cover justified expenses incurred during the performance of guardianship duties, i.e. for payment of the award to the guardian.

Other obligations of the guardian

In addition to the above obligations, the guardian is obliged to submit reports and accounts to the guardianship body within the prescribed time limits. Thus, we distinguish:
• regular report, which is submitted at the beginning of each calendar year,
• an extraordinary report submitted at the request of the guardianship authority
• final report, which the guardian prepares after termination of guardianship.

Certainly, the guardian’s report should contain data on the resident’s personality, housing conditions, health, upbringing and education of the resident, then data on the management and disposal of the resident’s property, then data on the resident’s income and expenses in the past period and the final state of his property, as well as all other information that is important for the person of the ward.

Finally, the guardian is responsible for any damage he causes to the ward during the performance of guardianship duties, unless he can prove that the damage occurred without his fault, with the fact that the guardianship authority is jointly and severally liable with him.

– What rights does the guardian have?

The guardian has the following rights:

• the right to reimbursement of costs
• the right to a prize

The guardian is paid compensation only for justified expenses incurred during the performance of guardianship duties. Reimbursement of costs, as well as the award, are paid to the guardian primarily from the ward’s income, unless it endangers the ward’s livelihood.

– Can the guardian be dismissed?

The guardianship authority is obliged to dismiss the guardian in the following situations and deadlines:

• the guardian has stopped performing his duty for any reason (without delay)
• the guardian abuses the rights or grossly neglects the duties of the guardian (without delay)
• some circumstance has occurred due to which he could not be appointed guardian (without delay)
• the guardian performs his duty negligently (30 days after this fact is established)
• it would be more beneficial for the ward to appoint another person as his guardian (30 days after this fact is established)

The guardian has requested that the guardianship authority dismiss him (60 days from the day he requested dismissal).

Certainly, when dismissing a guardian, the guardianship authority is obliged to promptly implement the procedure of appointing a new guardian, all while bearing in mind that the guardianship does not end with the dismissal of the guardian.

– When does guardianship end?

Upon termination of guardianship, all rights and duties of the guardian cease.
Guardianship must end in the following legally prescribed situations:

• when the minor ward reaches 18 years of age
• when a minor ward acquires full legal capacity before reaching the age of majority (eg by entering a marriage in accordance with the Family Law)
• when a minor ward is adopted
• when a legally binding court decision is made on returning parental rights to the parent of a minor ward
• when a legally binding court decision is made on the acquisition or restoration of legal capacity to the parent of a minor ward
• when a legally binding court decision is made on restoring legal capacity to an adult ward
• when the ward passes away.

Custody need not, but may, end when the parent who did not care for the child or cared for the child inappropriately begins to care for the child appropriately.

– Is the guardian of a minor obliged to financially support that person?

One of the main differences between parental rights and duties, on the one hand, and the guardian’s obligations, on the other hand, concerns the issue of supporting a minor child. Namely, the guardian does not have the obligation to support the ward, but the obligation to see to it that measures are taken to obtain the means to support the ward. The primary debtors (obligors) of maintenance are still the parents, even when they are deprived of parental rights. The debtors of a minor child who does not have parents are his other close relatives.

This would further mean that the guardian’s duty in terms of support is to do everything possible to ensure that the ward receives support from the people who are obliged to support him.

In practice, the most common cases happened when the parents went abroad and left the child with the grandmother or grandfather, they do not maintain a personal relationship with the child (which is why they are deprived of parental rights) and do not provide maintenance for the child. In such cases, the duty of the guardian (grandparent) is to initiate appropriate court proceedings to obtain maintenance for the child from the parents.

Therefore, although parents are deprived of parental rights, they can never be released from the obligation to support their minor child, and the guardian can never be burdened with this obligation on their behalf.

– Does the procedure for placing an adult under guardianship have to be conducted in court?

The procedure for appointing a guardian for an adult person presupposes the initiation of court proceedings for the deprivation of legal capacity of that person, i.e. the initiation of court proceedings in which it will be determined that the person who wants to be placed under guardianship has previously been deprived of legal capacity. The procedure for deprivation of legal capacity is a court procedure conducted according to the rules of the Law on non-litigation proceedings. You can read a separate article about the procedure for depriving legal capacity and appointing a guardian to that person. Certainly, bearing in mind that this is a court proceeding, we recommend that you consult with a lawyer before starting this procedure.

On the other hand, the very procedure for selecting and appointing a guardian to a person is an administrative procedure and it is conducted before the guardianship body – the competent center for social work.