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GUARDIANSHIP OF AN ELDER

GUARDIANSHIP OF AN ELDER

Guardianship is regulated by the Serbian Family Law as a special legal institute. In that sense, a distinction is made between a ward, as a person who is placed under guardianship, and a guardian, as a person who takes care of the ward, all on the basis of a decision on placing under guardianship, issued by the guardianship authority.

With the decision on placing under guardianship, the guardianship authority appoints a guardian and decides on where the ward is going to live. This decision also contain a care plan.

In everyday communication, the concept of guardianship and the concept of exercising parental rights are often confused. The word guardianship does not refer to entrusting, raising and caring for a child to one parent after a divorce, although in everyday communication it is often said for such situations that one or the other parent received guardianship of the child. So, when we use the word guardianship in these situations, we actually mean the exercise of parental rights, which is the independent or joint exercise of parental rights over a minor child.

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There are two different types of guardianship:

  1. Custody of a child without parental care ( minor ward )
  2. Guardianship over an adult who does not have legal capacity ( adult ward )

The following persons must be placed under guardianship:

  • minor children without parents
  • minor children whose parents have been deprived of parental rights
  • adults deprived of legal capacity

So, even when a minor child has living parents, if they are deprived of parental rights for any reason, it means that it is necessary to put the child under guardianship. There are many reasons why parents can be deprived of parental rights, like physical, sexual or emotional abuse of child, inciting a child to commit crimes, abandoning a child, not supporting a child etc.

On the other hand, an adult is placed under guardianship if, either due to illness or due to level of psycho-physical development, his actions directly endanger his own rights and interests or the rights and interests of other persons. An adult need a guardian in that situation because he is incapable to take care of himself.

Ko Who can be a guardian?

In order for a guardianship authority to appoint a person as a guardian, that person must have the personal qualities and abilities which are necessary to perform the duties of a guardian. Also, he must agree to be a guardian.

The guardianship authority may even decide not to appoint a guardian for the person under guardianship, but to perform the duty of guardian directly. Also, it is important to emphasize that a child, as 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 if he is capable of reasoning.
One person can be the guardian of several wards, but only if he agrees to that and if it is in the interest of the wards. For example, if minor children are left without parents in a car accident, and they have a grandfather who fulfills all the conditions to be appointed as a guardian, it is in not in the interest of the children to be separated, so the best solution in this situation is to appoint the grandfather as guardian for both children.

Temporary guardian

The guardianship authority is obliged to appoint a temporary guardian:

  • to a person whose residence is unknown and does not have a legal representative
  • to an unknown property owner
  • to a person whose interests are in conflict with the interests of his legal representative
  • persons with opposing interests if they have the same legal representative (conflict guardian)
  • to a foreign citizen who is or has property on the territory of the Republic of Serbia
  • the person requesting the appointment of a temporary guardian and stating a justifiable reason for doing so
  • to another person when it is prescribed by law.

Also, the guardianship authority has the possibility, but not the obligation, to appoint a temporary guardian to the ward, as well as to the child under parental care or a legally capable person, if it is necessary for temporary protection of the person, or his rights or interests.

Who can’t be a guardian?

The following persons cannot be appointed as guardians:

  • a person who is completely or partially deprived of legal capacity
  • a person who is completely or partially deprived of parental rights
  • a person whose interests are in conflict with the interests of the ward
  • a person who, given his personal relationship with the ward, the ward’s parents or other relatives, cannot be expected to perform the duties of a guardian properly.

What are the responsibilities of the guardian?

The guardian is, above all, obliged to conscientiously take care of the ward. Therefore, the care of the ward includes the following:

  • taking care of the personality of the ward
  • representation of ward
  • obtaining funds for the ward’s subsistence
  • management and disposal of the ward’s property

Taking care of the personality of the ward

This obligation of the guardian implies that he must take care that care, upbringing and education of the minor ward, as soon as possible, train ward for independent living, i.e. enables the ward to take care of himself independently.

In the case of an adult ward, the guardian is obliged to take care to eliminate the reasons for which the ward was deprived of legal capacity, in order to enable him to live independently as soon as possible.

Certainly, the guardian is obliged to visit the ward and to be directly informed about the conditions in which he lives.

Representation of ward

The guardian represents the ward in the same way in which parents represent their child. However, the guardian must still seek the prior consent of the guardianship authority if he decides about ward’s education, about medical procedure on ward’s body and about giving consent to the legal affairs which is undertaking the ward over 14 years of age. The guardian must also obtain the prior consent of the guardianship authority when he manages and disposes of income acquired by the ward under the age of 15.

Obtaining funds for the ward’s subsistence

The guardian obtains funds for the subsistence of the ward from various sources, like ward’s income, funds obtained from persons who are legally obliged to support the ward, the ward’s property, social protection funds, as well as other sources.

The guardian is obliged to take all necessary measures in order to obtain funds for these purposes.

Management and disposal of the ward’s property

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

However, the guardian can independently perform only tasks that fall within the regular management of the ward’s property. Therefore, activities that go beyond the regular management of that property the guardian can undertake only with the prior consent of the guardianship authority.

We emphasize that the principal of the ward’s property can be used only to support him or to satisfy some other important interest of the ward, while income from the ward’s property can be used to cover eligible costs incurred during guardianship and payment of a reward to the guardian, but only with the prior consent of the guardianship authority.

Other obligations of guardian

In addition to the explained obligations, the guardian is also obliged to, within the prescribed deadlines, submit reports to the guardianship authority and submit invoices for his work. First, he must submit a regular report at the beginning of each calendar year, then an extraordinary report, only at the request of the guardianship authority, and a final report, which he prepares after the termination of guardianship.

Of course, the guardian’s report should contain data on the ward’s personality, conditions of accommodation, health, upbringing and education of the ward, then data on the management and disposal of the ward’s property, data on the ward’s income and expenses in the past period of time and the final state of his property, as well as all other information which are relevant to the personality of the ward

Finally, the guardian is liable for the damage caused to the ward during the performance of guardianship duties, unless he proves that the damage occurred without his fault. If the guardian is liable, the guardianship authority is jointly liable with him.

What rights does the guardian have?

The guardian has the following rights:

  1. the right to reimbursement of his expenses
  2. the right to a reward

The guardian has right for compensation only for eligible expenses incurred during the performance of guardianship activities.
Certainly, the reimbursement of expenses, as well as the reward, is paid to the guardian primarily from the ward’s income, unless this jeopardizes the ward’s support.

Can a guardian be dismissed?

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

  • the guardian did not perform his duty for any reason (without delay)
  •  the guardian abuses the rights or neglects his duties (without delay)
  • there is a circumstance due to which he could not be appointed as a guardian (without delay)
  • the guardian performs his duty unscrupulously (30 days after this fact has been established)
  • it would be more useful for the ward to have another person appointed as a guardian (30 days after this fact has been established)
  • the guardian requested to be dismissed by the guardianship authority (60 days from the day when he requested the dismissal).

After the dismissal of the guardian, the guardianship authority is obliged to carry out the procedure of appointing a new guardian, because the guardianship does not end with the dismissal of the guardian.

When does guardianship end?

Termination of guardianship terminates all rights and duties of the guardian.
Guardianship must end in the following situations prescribed by law:

  • when a minor ward reaches the age of 18
  • when a minor ward acquires full legal capacity before age of 18 (for example, by concluding a marriage in accordance with the Family Law)
  • when a minor ward is adopted
  • when court decide to return parental rights to the parent of a minor ward
  • when a court decide to give or to return legal capacity to the parent of a minor ward
  • when a court decide to return legal capacity to an adult ward
  • when the ward dies. However, guardianship does not end if the guardian dies.
Guardianship does not have to, but it can end, when a parent who did not take care of the child or he took care of the child, but in an inappropriate way, starts to take care of him in an appropriate way.

The price of the legal advice and representation in the procedure of placing a person under guardianship or revoking the decision on placing him under guardianship you can find on our webpageLawyer tariff“. You can also contact us for more information about family law on our phone numbers: +381 11 770 74 53 or send us an e-mail: office@pavleski-law.rs.

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