Definition of guardianship law
Many people know the word “incapacitation”, which always has something threatening and negative attached to it. Even patients who, for whatever reason, are “cared for” are often afraid of being incapacitated from now on and no longer being allowed to make any decisions of their own.
When is someone placed under supervision?
All adult persons who are in need of help due to a mental illness or mental, psychological or physical disability and who are no longer able to fulfil their “life affairs” have the right to a caregiver. Life matters are understood to be very different areas such as care for one’s own health, dealing with authorities, financial matters, etc. Typical mental illnesses for which legal care may be necessary are, for example, addiction, dementia, severe personality disorders (e.g. borderline disorders) or psychoses. Even in the case of mental disability, it is not uncommon for care to be necessary.
What does the BGB say?
An appointed supervisor can be appointed according to §§1896 ff. BGB, an appointed guardian can only act in a supporting capacity by exercising a right of representation for the welfare of the person being cared for. This means that there is no incapacitation and the person being cared for remains legally competent.
However, this no longer applies when §1903 BGB comes into force. This paragraph deals with the legal incapacity of the person concerned if he/she concludes transactions to his/her disadvantage. This can happen, for example, with bipolar disorders during a manic phase.
In such a case, if the legal incapacity is proven, the counsellor receives a reservation of consent, so that counsellors can only conclude far-reaching contracts with the consent of the counsellor in order to counteract unfavourable contract conclusions. The guardianship court can give a guardian the additional order for a reservation of consent in accordance with §1903 BGB, if there is a threat of considerable danger to the person or assets of the person being looked after. This means that the guardian has the ability to restrict the legal capacity of the person being cared for if the court finds him/her to be legally incompetent because of an illness or disability and the person’s property has been used wastefully.
How is support initiated?
A childcare facility will only be set up once the childcare court receives a suggestion to initiate it. In theory, anyone (relatives, attending physician, social worker, but also neighbours) can initiate the establishment of care. In order to determine whether the institution is actually useful and necessary, such a suggestion is always examined.
Such an examination is always accompanied by a judicial interview (a so-called hearing), in which the patient has the opportunity to comment on the suggestion. If he or she is not able to comment on the matter for reasons of illness, a registrar is assigned to assist the patient. This is a legally trained person who speaks for the patient and his concerns.
He tries to get the best possible overview of the patient’s situation by talking to him, his doctor and, if possible, relatives. Furthermore, a medical opinion must be obtained from the court, in which the medical necessity for the establishment of care is explained. Such an expert opinion can only be given by “a doctor experienced in psychiatry”.
During the assessment, the patient has the right to have a person of his or her trust present. Only when the court has gained a comprehensive picture of whether help is necessary, and if so, in which areas of life, does the competent judge alone decide whether care should be established. The court then appoints a caregiver.
In principle, it is also possible to take over care tasks as a relative of the patient. If this is not possible, or not desired, professional, full-time caretakers are appointed. Every person who is ultimately placed under care has the right to appeal against this decision.
Supervision is always set up “on a temporary basis”. This means that the care ends when the reasons that initially led to the initiation of the procedure no longer apply. On the other hand, there must be a review of the need to maintain care within certain periods of time (usually 6 months for diseases with a good prognosis).
Officially, a caregiver is the legal representative of the patient under care. However, this is expressly only in the life matters listed by the court. A person who is obviously overburdened with official procedures and official tasks (e.g. spa applications, unemployment benefits, etc.)
would have a carer at his side in this area of life, but would still have full control over his assets. So if a patient is under care in the point “health care”, the caregiver can also determine a stay in hospital against the will of the patient, for example. However, he cannot, for example, determine or influence the patient’s financial affairs.
In principle, the law stipulates that a caregiver must consult with the patient in all decisions. If a patient now acts “dangerously” to his or her life or property in matters in which he or she is being cared for (e.g. caring for his or her own health or managing his or her own assets), the carer can order a so-called “consent proviso”. At this point, the independence of the patient being cared for ends. His or her decisions are reversed or annulled.
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