Appointment of supervisors
In Germany, private individuals, club supervisors (who are employed by a care association ), official supervisors ( employees working for an authority responsible for care ), professional supervisors, a care association itself or the responsible authority can be appointed as legal supervisors . Other legal persons (other associations, GmbH, etc.) cannot be appointed as supervisors. For the caregiver order that's guardianship court jurisdiction.
Ranking of the supervisor selection
When selecting the supervisor in the supervision procedure , the court must adhere to the following order of priority:
- Desire of the person concerned
- Spouse , life partner , parents or children
- other relatives or friends
- other volunteer carers
- Club supervisor , authority supervisor or professional supervisor
- Supervision association or supervisory authority
Only good reasons justify a deviation. The guardianship court may only deviate from the suggestion of the person concerned if this is contrary to the well-being of the person in custody. In the form of a supervision order , a proposal can be made in the event that the supervisor has to be appointed unexpectedly. This can prevent a possible family conflict.
In practice, the above sequence is also followed, so that in most cases those affected are cared for by close relatives .
Appointment of supervisors
In 2004 a total of 68.66% (previous year: 70.49%) of the appointed supervisors were volunteers when they were first appointed. The individual shares nationwide:
- Family members were appointed 142,006 times, that was 62.38% (previous year 144,095 = 63.98%),
- Other volunteer supervisors were appointed 14,295 times, this corresponds to 6.28% (previous year 14,665 = 6.51%),
- 55,521 times were professional caregivers ordered = 24.39% (previous year 50,883 = 22.59%), of which 8,094 lawyers (previous year 7301)
- 14,003 times were club caregivers and care teams ordered = 6.15% (previous 13,530 = 6.01%)
- Official supervisors and supervisory authorities were appointed 1,819 times = 0.8% (previous year 2045 = 0.91%).
( Source: Federal Ministry of Justice, special survey: Procedure according to the Care Act )
Desires of the supervised person when choosing a supervisor
The court must appoint the supervisor suggested by the person concerned, as long as there are no good reasons against it. It is not permissible to reject a supervisor suggested by the supervisor because a more suitable supervisor has been suggested by a third party, e.g. by the supervisory authority . Requests of the person concerned regarding the person of the supervisor are to be considered by the court, regardless of whether the person concerned is legally competent or not. Also wishes expressed earlier, e.g. B. in a care decree , should be fulfilled, unless the person concerned clearly no longer adheres to them.
Close social ties
If the person concerned has not made a supervisor suggestion or if the suggested person can choose from the above Reasons, or because he himself refuses to be appointed, the court must further examine whether someone from the immediate family and social environment of the person concerned can be appointed as a carer. Here, the court can acc. § 8 BtBG request the supervision authority to carry out appropriate investigations.
Ordering family members
When looking for a supervisor in a specific individual case, experience has shown that a person's relatives are first looked for, especially since there is more likely than with professional supervisors in general that a social commitment to the person concerned is expected. In addition, Section 1897 (5) of the German Civil Code ( BGB) stipulates that, if the person concerned does not suggest a suitable supervisor, consideration should be given to family and personal ties when choosing.
However, it is questionable whether relatives should generally be preferred over other equally suitable persons; the court should always take into account the social environment of the person concerned when making its selection; Possible entanglements between the person concerned and the potential supervisor should also be considered, which could be intensified by the arrangement of supervision .
For example, in the case of the mentally handicapped, the desirable independence can be delayed or prevented if an overprotective parent is appointed as a carer. In addition, the self-interest of a related supervisor in maintaining the property of the person being looked after and possibly later inheritance must be assessed. It is to be examined whether the idea expressed by the legislator in Section 1901, Paragraph 1, Sentence 2 of the German Civil Code (lifestyle according to one's own wishes) can be impaired. Possible conflicts of interest are mentioned in Section 1897 (5) BGB. In addition, possible advantages (the supervisor is known to the person being looked after; no familiarization is necessary) must be weighed up.
Conflicts of interest must always be specifically identifiable, however, a purely abstract risk does not justify rejecting a person desired by the carer as a carer.
Other volunteer supervisors
The care (like the guardianship and guardianship ) is basically an honorary position free of charge . Therefore, individuals should primarily take care of the care on a voluntary basis. Volunteer carers have various claims that arise from volunteering towards the person they are caring for or the state, e.g. B. for advice or accident insurance .
Every citizen is obliged to take over care if it is suitable for the personal care of the person concerned and if the takeover can be expected ( § 1898 BGB). For this purpose, other, in particular family and health burdens are taken into account. To be appointed as a supervisor, a declaration of consent from the person to be appointed is required. Nobody can be forced to make this declaration. In contrast to a guardianship according to § 1788 BGB, there is no penalty payment for childcare . Civil servants need a secondary employment permit from their employer in order to take over care.
The volunteer supervisor only receives reimbursement of expenses in accordance with § 1835 / § 1835a BGB (either a flat rate of currently 323 euros annually or, alternatively, reimbursement of the expenses actually incurred such as travel costs, postage, etc., but no reimbursement of the Working time). The remuneration and the flat-rate expenses are to be paid by the supervised and are only borne by the state treasury if the supervised is poor. The lack of funds is determined according to the principles of social welfare law ( § 1836c BGB / § 90 SGB XII , currently there is a saving of around 5,000 euros. A single family home is not considered either).
Employees in homes and clinics as carers
Employees of the nursing home or psychiatric hospital in which the person in care lives cannot be appointed as a carer even if the person in care expressly requests it. This is intended to prevent conflicts between the interests of the person being cared for and the institution for which the “preferred carer” works ( Section 1897 (3) BGB).
Appointment of professional supervisors
If no one from the circles mentioned above (persons named by the supervised person, close relatives, other volunteers) comes into question as a supervisor, the appointment of a professional supervisor is only permitted, according to Section 1897 (6) of the German Civil Code (BGB) since January 1, 1999 .
In this context, conflicts should also be mentioned that may arise from the family relationship and that speak against appointing a close relative to be the caregiver; z. For example, it may be necessary to assert the interests of the person being cared for against their own family; relatives may have a self-interest in keeping the person’s assets together for the purpose of a later inheritance , which in turn can impair the person’s desire to lead an appropriate life. Here, too, it may be appropriate to appoint a carer who does not belong to the family of the person being cared for.
In the case of particularly complex care ( delusional illnesses , numerous legal proceedings, managing large assets, etc.), it will also be advisable to suggest a professional carer.
As of July 1, 2005, the remuneration of the professional carers was significantly changed, as the costs had risen sharply in recent years, particularly due to the carer remuneration to be paid from the state treasury. The club supervisor and the professional supervisor now receive a remuneration that sets the cost of supervision by the hour (and between 27 and 44 euros / hour including VAT and reimbursement of expenses depending on the supervisor's qualifications).
Appointment of club supervisors or the care club
Employees of care associations can be appointed as association supervisors ( Section 1897 (2) BGB). The club supervisor can only be someone who has an employment relationship with the supervisory club. The care association is obliged to provide qualified employees, to supervise them, to train them and to insure them against damage that they could cause as part of their care activities.
If supervision by one or more natural persons (voluntary or professional supervisors) is not possible, the supervisory association can also be appointed as a supervisor ( Section 1900 (1) BGB). In this case, however, the care association has no claim to remuneration ( Section 1836 (3) BGB), only the right to reimbursement of expenses ( Section 1835 (5) BGB).
Appointment of official supervisors or the supervisory authority
Employees of supervisory authorities can be appointed as official supervisors ( Section 1897 (2) BGB). A supervisor can only be someone who is in an employment or service relationship with a supervisory authority or its supporting body (usually a municipality ).
If supervision by one or more natural persons (voluntary or professional supervisors) and by a supervisory association is not possible, the supervisory authority itself can be appointed as supervisor ( Section 1900, Paragraph 4 BGB). The supervisory authority is therefore obliged to take over the supervision if there is no other possibility of taking over the supervision.
In this case, the supervisory authority has no claim to remuneration ( Section 1836 (3) BGB), only entitlement to reimbursement of expenses ( Section 1835 (5) BGB) in the case of those being looked after .
Control / Supervision Supervisor
If an authorized representative has been appointed, a supervisor with the task of “exercising rights against the authorized representative "acc. § 1896 Abs. 3 BGB.
The appointment of a control supervisor is required if the person concerned has a general power of attorney if there is a specific need for monitoring and the person concerned can no longer exercise his right to information and invoicing according to § 666 BGB vis-à-vis the authorized representative due to his mental illness. Suspicion of abuse is not required.
Sterilization supervisor
For the consent to a sterilization of the cared for (according to § 1905 BGB) must acc. In accordance with Section 1899 (2) BGB, a special supervisor must always be appointed. According to Section 1900 (5) BGB, the supervision authority and the supervision association may not be appointed for these tasks.
Appointment of several supervisors
It is possible that several supervisors are appointed for one supervised person, e.g. B. for different task groups ( § 1899 Abs. 1 BGB). However, since July 1, 2005, it has not been possible to appoint more than one professional supervisor for one person supervised. It is still possible to appoint a volunteer and a professional supervisor at the same time . In addition, prevention supervisors can be appointed if the supervisor is legally or actually (e.g. vacation, illness) prevented from performing his duties.
Change of supervisor
It can be disadvantageous for the carer if his carer is changed and he has to get used to a new person. Therefore, a change in supervision should be avoided if possible. In 2004, 36,227 new supervisor appointments were made after changing supervisors ( Section 1908b BGB). This means that such a change took place in around 3.5% of all those cared for.
Change of supervisor at the request of the supervisor if this is unreasonable
A supervisor can, if he can no longer be expected to take care of him due to new circumstances, request his release from the guardianship court ( Section 1908b (2) BGB).
Such circumstances can e.g. B. in being overburdened with the provisions for caregiver work . It can also be the case that the person being cared for is constantly harassing or threatening the carer or requiring him to spend significantly more time than the carer can provide. A career change with the supervisor, e.g. B. in a distant city or considerable burdens in the family sphere of the carer can justify such unreasonableness.
Change of supervisor if the supervisor is unsuitable for the supervisory activity
It happens that a person selected as a supervisor was unsuitable from the start to work as a supervisor. Such wrong decisions should be avoided, in particular by involving the care authority ( Section 8 Care Authority Act ), but they cannot always be avoided.
Who z. B. is not in a position to represent the interests of the person under care vis-à-vis third parties such as authorities , landlords or other contractual partners , is usually unsuitable. The same applies to people who, even with the help of associations and supervisory authorities, cannot fulfill their duties towards the person under care and the guardianship court or who even enrich themselves with the property of the person under care ( infidelity ).
Sometimes the ability to take care of matters for the person being looked after is impaired later, e.g. B. due to serious illness of the supervisor.
Change to volunteer support
Insofar as a professional supervisor has been appointed ( Section 1897 (6) BGB), he should be dismissed if the person being cared for can be looked after by one or more other people outside of a professional activity ( Section 1908b (1) BGB). This applies to situations in which the supervision no longer requires the specialist knowledge of the professional supervisor.
Change of supervisor after the death of the supervisor
After the supervisor's death, a new supervisor must also be appointed ( Section 1908c BGB). The heir of the guardian must report his death to the guardianship court ( § 1894 BGB).
See also
- Betreuungsverfügung , caregiver ID , supervisor liability , supervisor duties , club supervisor , Betreuungsverein , care authority , guardian ad litem , guardian
