Guardianship – the reasons
In Germany, in 1992, guardianship as legal care for the welfare of the person concerned replaced the guardianship and infirmity guardianship that had been in force until then. The advantage of guardianship is that the person under guardianship has more rights and the guardian has greater control. In addition, a care directive does not have to be comprehensive, but can only apply to certain areas.
The prerequisite for guardianship is an objective need for help and support. It can only be established if the person concerned can no longer manage their affairs without assistance. The reasons for this can be mental illness, congenital mental, physical or psychological disabilities. An example of a mental disability is mental deterioration in dementia patients.
Different regulations in Austria and Switzerland
Adult representation should only apply to those areas where it is absolutely necessary. To ensure this, there have been four forms (or levels) of adult representation since July 1, 2018:
- Healthcare proxy: With a healthcare proxy, anyone who is fully capable of making decisions can specify exactly who may act on their behalf in the future if they are no longer able to do so themselves. You can also appoint different authorized representatives for different areas of your life. With a health care proxy, you can therefore retain the greatest possible self-determination in phases in which you can no longer make decisions on your own. You can read more about this here.
- Elected adult representative: If someone has not made provisions by means of a healthcare proxy, it is sometimes still possible for people who are no longer fully capable of acting to appoint an elected adult representative for themselves.
- statutory adult representation: Since July 2018, this has replaced the “power of representation of next of kin” and is an option if no healthcare proxy has been created and “elected adult representation” is not possible.
- Judicial adult representation: This replaces the former “guardianship” and can be considered if there is no power of attorney and no other adult representation (elected or statutory) is possible.
For example, the KESB can order guardianship if someone is no longer able to take care of important matters themselves. In other words, a guardian is appointed and it is determined exactly which areas of the person’s life (e.g. housing, money, health) they are responsible for and what options they have. Accordingly, there are different types of guardianships.
For example, in the case of an accompanying guardianship, the guardian only offers the person concerned low-threshold advice and support – but the person concerned remains responsible for all matters themselves. In the case of representative assistance, on the other hand, the adviser may conclude contracts and carry out transactions on behalf of the person concerned. In the case of participatory guardianship, the person concerned and the guardian may only make decisions (such as concluding contracts) with each other’s consent.
Proposing guardianship
In Germany, anyone can apply to the competent local court (guardianship court) for guardianship if there is reasonable suspicion that they or another person can no longer cope with everyday life without legal and organizational assistance.
The guardianship court must examine this application and appoint an expert. These are employees of the court who visit the person concerned in their living environment and doctors who document their state of health.
If it is felt that the person concerned is unable to adequately represent their interests, a guardian ad litem is appointed for the duration of the court proceedings. This can be a trusted person of the person concerned, a lawyer or an employee of authorities and care associations.
Judicial hearing
A judge decides on the need for guardianship and the appointment of a guardian. He receives all expert reports and must form a personal impression of the person concerned. To do this, he visits the person concerned in person in hospital, a care home or at home. However, the person concerned may also refuse a hearing in their private environment. The hearing then takes place in court.
In a final meeting, the judge explains to the person being cared for how he or she will decide.
Who becomes a guardian?
If the court does not know of a trusted person who is willing to take over the care, a professional guardian is appointed. These can be social workers or lawyers who make a living from representing and caring for a large group of people in their care. Professional caregivers usually receive a flat-rate fee. Only if an individual person is unable to provide care can a care association or a public authority be appointed as a guardian.
Scope of care
Guardianship is only set up for those areas of responsibility that the person concerned cannot perform independently. Depending on the person’s abilities, either comprehensive guardianship or guardianship for the following areas is set up:
- Medical treatment and care for health
- Property care
- Right of residence
- Housing matters
- Mail and telephone control
Tasks of the guardian
Depending on the designated area of care, the caregiver handles banking transactions for their protégé, allocates money for certain periods of time, concludes contracts with landlords and home managers and accompanies the care recipient to the doctor. It goes without saying that the doctors are released from their duty of confidentiality towards the caregiver. The care recipient and caregiver decide together which medical treatment is best.
Personal contact between the caregiver and their protégé is crucial. Under no circumstances is it sufficient if the caregiver only deals with correspondence and legal matters and does not visit the person being cared for on a regular basis. In practice, however, this is often not the case. This is why politicians are currently reviewing the law on guardianship and may reform it.
Limits to decision-making powers
Guardianship law defines situations in which the guardian may not make decisions alone, but must obtain the approval of the competent court. These include above all
- medical treatments or interventions that are associated with a high risk to life or a high risk of permanent damage to health (except in emergencies)
- sterilization
- Placement in the closed ward of a hospital or nursing home
- Termination of existing tenancies
End of guardianship
The guardianship court must decide on the termination or extension of a guardianship after seven years at the latest. In most cases, the competent court specifies an earlier date by which the need for care must be reviewed when appointing the guardian.
Irrespective of this, the person under guardianship or their guardian can inform the court at any time that the requirements for guardianship have changed in the meantime or have even ceased to apply. The court must then decide whether to terminate the guardianship.
If the person under guardianship is dissatisfied with their guardian, they can propose another guardian to the court. This person must be equally suitable and willing to take over the care. If a guardian does not fulfill their duties, they will be dismissed by the court.
