Guardianship law - important information

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Care - the reasons

In 1992, the care replaced the guardianship and frailty custody that had been in effect until then. The advantage of care is that the person being cared for has more rights and the carer is more closely monitored. In addition, a supervision decree does not have to be comprehensive, but can only apply to certain sub-areas.

The prerequisite for care is an objective need for help and support. It can only be established if the person concerned can no longer regulate his affairs without assistance. The reasons can be mental illness, congenital mental as well as physical and emotional disabilities. An example of a mental handicap is mental deterioration in dementia patients.

Suggesting support

Anyone can request support at the responsible local court (guardianship court) if there is a reasonable suspicion that someone else or himself can no longer cope with everyday life without legal and organizational support.

The guardianship court must examine this application and appoint an expert. These are employees of the court who visit the person concerned in his home area, as well as doctors who document his state of health.

If there is the impression that the person concerned cannot adequately represent his interests, he will be assigned a curator ad litem for the duration of the legal proceedings. This can be a confidante of the person concerned, a lawyer or an employee of the authorities and care associations.

Judicial hearing

A judge decides on the need for supervision and the appointment of a supervisor. He receives all reports and has to get a personal picture of the person concerned.

The judge visits the person concerned personally in the hospital, home or apartment. However, the person concerned may also refuse a hearing in his private environment. Then the hearing takes place in the court. In a final discussion, the judge explains to the person being looked after how he will decide.

Who will be the supervisor?

Anyone who suspects that they will need care in the coming years can set out in writing who should be their carer in a care decree. Even without such a document, the guardianship courts first try to approach close relatives or good acquaintances whether they want to take on this task. Medical experts can also suggest a person if they have determined in the course of their examinations and discussions that there is a special relationship of trust between the person concerned and a reference person.

If the court does not know a person of trust who wants to take over the supervision, a professional supervisor is appointed. These can be social workers or lawyers who live from the fact that they represent and take care of a larger group of people receiving care. Job supervisors usually receive a flat-rate remuneration. Only if a single person cannot provide the care, a care association or an authority can be appointed as a carer.

Scope of care

Supervision is only set up for those areas of responsibility that the person concerned cannot do independently. Depending on his abilities, either comprehensive support or support for the following areas is set up:

• Medical treatment and health care,
• Asset management,
• Right of residence,
• Housing matters,
• Post and telephone control.

Responsibilities of the supervisor

The supervisor is above all obliged to his protégé. He must not simply orient himself to his own views and convictions, but must orientate himself to the wishes of the person being cared for, as long as this does not harm himself. Because according to § 1901, Paragraph 2 of the BGB, "the well-being of the cared for also includes the possibility to shape his life according to his own wishes and ideas within the scope of his abilities." The supervisor has to respect the life plan of the person being looked after and may only act contrary to this if the life or health of the person being looked after is specifically threatened by their behavior.

Depending on the designated field of care, the supervisor carries out banking transactions for his protégé, allocates the money to him for certain periods of time, concludes contracts with landlords and home managers and accompanies the person under care to the doctor. It goes without saying that the doctors are released from their duty of confidentiality towards the respective supervisor. The supervisor and supervisor jointly decide which medical therapy proposal is the best. The decisive factor is the personal contact between the supervisor and his protégé. It is by no means sufficient if the supervisor only takes care of the correspondence and legal correspondence and does not appear regularly at the caretaker's. In practice, however, it is often different. That is why politicians are currently reviewing childcare law and may reform it.

Limits to the power of decision

In custody law, situations are defined in which the custodian is not allowed to decide on his own, but has to obtain the consent of the competent court. Above all, this includes:

• Medical treatments or interventions that are associated with a high risk of death or permanent damage to health (except in emergencies).
• Sterilization,
• Placement in the closed ward of a hospital or nursing home,
• Accommodation-like ("liberty-depriving") measures such as bed rails, waist belts, tying the arms and legs, locking the room or medication to immobilize the patient. These must also be requested separately for existing accommodation.
• Termination of existing tenancies.

End of care

After seven years at the latest, the guardianship court must decide whether to cancel or extend childcare.When appointing the supervisor, the competent court usually specifies an earlier date by which the need for supervision must be checked.

Regardless of this, the person being cared for or his or her supervisor can inform the court at any time that the conditions for the care have now changed or are no longer applicable. Then the court has to decide whether to cancel the supervision. If the person being cared for is dissatisfied with his or her supervisor, he can propose another supervisor to the court. This person must be equally suitable and ready to take over the supervision. If a supervisor does not fulfill his duties, he will be dismissed by the court.

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