Supervisor Liability

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The legal advisor is liable for intentionally and negligently caused damage in assisted when this as breach of duties ( § 1833 i. V. m. § 1908i para. 1 BGB ). The supervisor has no official duties towards other people.

Breaches of duty

The supervisor acts contrary to duty if his behavior constitutes a violation of the obligation to faithfully and conscientiously conduct the supervision . There is a breach of duty, for example, if the supervisor violates specifically formulated legal provisions, e.g. B. does not comply with its information, reporting and accounting obligations ( § 1839 , § 1840 BGB), does not invest funds for the supervised person that are not required for current livelihood in accordance with § 1807 BGB and also no legal guardianship approval for otherwise Applies for financial investments according to § 1811 BGB, makes gifts in violation of § 1804 , § 1908 BGB, conditions of the testator or donor ( § 1803 BGB) or the provisions on the deposit of securities ( § 1814 , § 1818 BGB) and blocking of accounts ( § 1809 , § 1815 , § 1816 BGB) disregarded or mixed funds of the cared for with one's own ( § 1805 BGB).

Compared to the guardian or carer of a minor, the supervisor is less free to organize his or her supervision. In all actions, he has to orient himself towards the wishes of the person under care ( Section 1901 (2) BGB), if such are expressed, whereby the legal capacity of the person under care is irrelevant. However, this requirement only applies if these wishes do not run counter to the welfare of the person being cared for and can be expected of the carer.

Unlawful action by the supervisor in this sense is z. B. also given if he forces the cared for an economical way of life against his will and actual possibilities. The supervisor may also not curtail the lifestyle against the wishes of the supervised person in favor of refinancing the supervisory activity.

Failure to maintain regular contact with the supervised person ( Section 1897 (1) BGB) and to discuss important matters ( Section 1901 (3) BGB) is also contrary to duty . The forced transfer of the person being cared for to an open nursing home should also be contrary to duty, as should the refusal of contact with close relatives for no reasonable reason.

Further examples: refusal of funds for health resort measures, reckless denial of a justified creditor's claim, rejection of an apparently justified criminal defense appointment despite assets, refusal of financial resources for the (legal) submission of a care cancellation request, arrangement of accommodation only with the task of health care.

Claims for damages can be raised

  • by the carer himself, provided he is legally competent (a reservation of consent should of course not extend to claims against the carer);
  • by someone authorized by the supervised person (e.g. a lawyer );
  • by a supplementary supervisor (according to § 1899 Paragraph 4 BGB), whose only task area includes the examination of any breaches of duty and the assertion of claims for damages ;
  • by a later appointed supervisor who, together with the property management task, also has to assert (not yet statute-barred) claims for damages against a previous supervisor. This applies in particular in the case in which the previous supervisor was dismissed for breaches of duty;
  • of the heirs of the deceased cared for as their legal successors .

However, the supervisor, especially the legally ignorant volunteer supervisor , is to be given relief from the special circumstances of his or her circle of life. In principle, he may also refer to legal advice from the guardianship court in accordance with Leave Section 1837 (1) BGB.

With a career supervisor , however, you can usually expect that he knows the legal basis of his work and, if necessary, is able to access the information necessary for his work, possibly by using the various advice options, but also through further training and his own Literature research. In addition, professional supervisors are not granted any relief from liability in the event of a breach of duty, which sometimes legally inexperienced volunteer supervisors, e.g. B. in dealing with social service providers .

Damage can also result from failure to take necessary actions

Damage caused by failure can lead to liability if the supervisor should have acted to protect the person being cared for. Examples would be missed application deadlines, e.g. B. in the case of voluntary health insurance or in the rejection of an overindebted inheritance of the person in care.

Basically no obligations towards third parties

In principle , the supervisor only has obligations towards the person supervised ( § 1901 BGB). In principle, he does not have to take into account the interests of third parties (landlords, authorities, etc.) in his work. However, the Federal Court of Justice ruled in an earlier judgment that contract negotiations for particularly dangerous contract partners must not be burdened with an extreme risk.

In terms of social welfare law , the supervisor also has the duty to cooperate under social law ( Section 60 SGB ​​I ). He must z. B. Inform the social security provider about acquisitions of assets ( gifts , inheritances ) without being asked. Under certain circumstances he can be obliged to pay damages himself if important information is not disclosed ( § 103 SGB ​​XII ).

In tax law , the supervisor, with the task of asset management, has the tax declaration obligations of the person supervised ( Section 34 of the Tax Code ). If he violates this obligation intentionally or with gross negligence, he is also liable to the tax office himself ( § 69 AO).

Supervision court approval is not an exemption from liability

Approval by the supervisory court does not constitute an exemption from the obligation to pay compensation . The supervisor is further responsible for the legality of his actions.

The limitation period vis-à-vis the supervised person or his heir is 30 years; there is also a limitation period during ongoing supervision ( § 197 , § 207 BGB).

Civil and criminal liability of the guardian

Basics: § 1833 i. V. m. Section 1908i Paragraph 1 BGB, Section 14 StGB and Section 9 OWiG

The supervisor can be held liable for any damage caused to the supervised person. It is therefore advisable to take out liability insurance for the supervisor. The supervisory court can oblige the supervisor to take out liability insurance ( Section 1837 (2) BGB).

Voluntary supervisors are already insured by the state in most federal states (except for financial losses in North Rhine-Westphalia). Liability insurance should also be taken out for the person being cared for, provided that they are not incapable of tort ( Section 827 BGB). Care associations often offer free insurance for club members. In the case of professional supervisors , a prerequisite for starting a career is that liability insurance is available.

Types of breach of duty

In the work of the supervisor there can be numerous different processes that trigger liability claims. Due to the particularities of the individual case, it is not possible to give a complete list. However, at least example cases should be listed below that have already been assessed accordingly in the case law or literature.

Litigation

Liability consequences in the context of the management of processes for the supervised can be triggered, among other things, by:

  • leading a hopeless process;
  • the incorrect conduct of a process;
  • failure to submit a legal aid request ;
  • failure to take legal action before the limitation period has expired ;
  • Failure to provide information about the person under care's financial obligations as a result of lost processes.

Social benefits and maintenance

As part of the financial security of the cared for, the following were confirmed as breaches of duty:

The Federal Social Court saw it as the duty of the supervisor to personally take care of voluntary continued insurance in the health insurance company , provided that the task area health care exists. In the event of a late application for a pension , it was recognized that the caregiver had initially trusted the success of rehabilitation measures at the request of the person in care .

In the case law, it was found that applying for social assistance is part of personal care, not property care. For this reason alone, a supervisor who is solely responsible for asset management cannot be held liable for late filing of a social assistance application. Similar demarcation problems exist with maintenance claims. The OLG Zweibrücken does not see them as part of the property management task.

General wealth management

In the area of ​​asset management, the following breach of duty was affirmed:

  • the premature sale of property in times of rising prices;
  • the uncritical assumption of the valuation of real estate;
  • the investment of ward money (which is not required for current maintenance) with an interest rate that is too low (in a savings book with statutory notice instead of investing in treasury bonds or similar securities);
  • investing in foreign (uncertain) securities.

In order to answer the question of whether there has been a breach of duty in the area of ​​asset management, the overall behavior of the legal guardian must generally be checked; individual expenditure items may not be selected arbitrarily. In the event of a lack of legal knowledge, the supervisor may be obliged to obtain legal information from the supervisory court ( Section 1837 (2) BGB).

Living room

In the area of ​​providing care for adults, it must be noted that the termination of living space by a supervisor depends on the approval of the supervisory court in accordance with Section 1907 (1) BGB.

Hence there is liability for here

  • the belated obtaining of the approval of the supervisory court;
  • the culpable delay in liquidating the apartment after the approval has been granted;
  • the unlawful abandonment of the cared person's home without prior approval from the guardianship court.

However, the continuation of the lease of the person in care may also be advisable, contrary to a supervisory court approval to terminate the living space, if it serves the well-being of the person in care ( Section 1901, Paragraph 1 BGB), because, for example, their state of health has improved and abandonment is no longer necessary. In this case, despite court approval, the termination of the living space can again trigger liability-related consequences, since the supervisor always has to orient all legal acts to the well-being of the person being looked after. The supervision court approval requirement only applies to apartments inhabited by the supervised person himself.

Furthermore, a supervisor was held liable for not having given notice of the termination of the apartment in good time. The access to the apartment of the person being looked after can also be the subject of the dispute. According to the rulings of the Regional Court and the Higher Regional Court of Frankfurt am Main , the carer cannot enter the apartment of the person being cared for against their will. He cannot be authorized to do this by the supervisory court . This view is debatable.

The liquidation of the apartment itself can also become an offense giving rise to damages if, for example, the supervisor erroneously has valuable antiques disposed of as bulky waste or, in ignorance of the donation prohibition ( § 1804 , § 1908i Paragraph 2 BGB), gives away items of the person being looked after. In case of doubt, appraisals should be obtained, neutral witnesses should be consulted when the apartment is liquidated and, if necessary, loans should be made (against proof) instead of donations.

Personal care

Liability in the area of ​​personal care is always more difficult than in other areas. Usually it comes to issues of medical treatment and / or custodial placement . For example, the Federal Court of Justice ruled on October 11, 2000 that a forced presentation for the outpatient administration of medication was not permitted. The LG Oldenburg described the transfer of a person in care to an open nursing home against his will as inadmissible. Deprivation of liberty is also problematic only with the health care task area.

Even if a supervisory court approval required for certain legal acts (e.g. approval to terminate a rental agreement for living space, Section 1907 (1) BGB) has been issued by the supervisory court, this does not exclude liability on the part of the legal guardian.

Liability insurance

Liability for damage according to § 1833 BGB can represent a high financial burden. According to Section 1837 (2) of the German Civil Code, the guardianship court can oblige the guardian to take out financial loss liability insurance. For volunteer supervisors , however, all federal states have taken out collective liability insurance, in which all supervisors who are not professionally active are insured. Here, personal injury and property damage are insured up to EUR 1 million. In the case of financial losses, however, the insurance coverage is significantly lower. Depending on the federal state, the insurance coverage for financial losses is between 26,000 and 100,000 euros.

Club supervisors must be insured under Section 1908f BGB through their supervisory association. Authorities caregivers are subject to official liability law ( § 839 BGB). Self-employed carers should take out liability insurance on their own initiative. The professional associations ( BdB and VfB ) offer discounted conditions.

Criminal offenses

The guardian is guilty of an offense under criminal and civil law if he is responsible for asset management and tolerates social fraud on the part of the person under care. If he does not have this task or if it is a criminal offense such as illegal drug possession , the caregiver is not obliged to prevent this circumstance. Because only serious crimes, starting with the preparation of a war of aggression, robbery and counterfeiting to the formation of terrorist organizations have to be reported. People who are subject to confidentiality are also obliged to do so. It is unclear whether the supervisor can be prosecuted if he consents to therapeutic treatment of the person being cared for, which is punishable as bodily harm because it was carried out wrongly against the will of the person being cared for. Zimmermann takes the position that the risk lies solely with the treating doctor.

Exemplary cases

It happens again and again that both the print media and television report spectacular abuse of supervisors. Mostly it is about the embezzlement of funds of cared for people by their carers. However, such individual cases can neither prove nor invalidate whether the profession of carer works worse overall than other professions.

In spring 2006, a case made headlines throughout northern Germany. It was about the case of a 68-year-old woman who was admitted to psychiatry for months and placed under care. Her supervisor sold her house in Kummerfeld on the outskirts of Pinneberg against her express will. In addition, against their will, but on their behalf, their supervisors wanted to enforce before the Berlin Regional Court that no names may be mentioned in the press. The person she looked after had turned to the press. The court finally ruled against the supervisors that the names of the case may be mentioned in the media: the supervised, the location of the property, etc., but not the names of the controversial supervisors. This case raises fundamental questions such as: B. whether the will of the person being looked after, which must be observed according to the law, is not being considered enough in practice.

See also

literature

Books

  • Dario Arconada, Christine Susanne Rabe: Liability issues in everyday caregivers - a guide , Bundesanzeiger-Verlag, Cologne 2014, ISBN 978-3-8462-0440-5
  • Horst Deinert , Kay Lütgens, Sybille M. Meier: The liability of the supervisor. A practical guide. 2nd, revised edition. Bundesanzeiger-Verlag, Cologne 2007, ISBN 978-3-89817-594-4 .

Magazine articles

  • Axel Bauer, Judith Knieper: Liability of the supervisor for breach of duty of supervision. In: Care Law Practice . 1998, pp. 123–125, online (PDF; 132 kB) .
  • Michael H. Beck: The possible liability of the supervisor if the person concerned is accommodated. In: Care Law Practice. 2001, pp. 195-197.
  • Horst Deinert, Marcus Schreibauer: Liability and assumption of liability in the supervisory relationship. In: Care Law Practice. 1993, pp. 185-192.
  • Sybille M. Meier: On the liability of the professional supervisor. In: Care Law Practice. 1999, pp. 57-59.
  • Karl-Dieter Pardey: State liability for guardians, carers and carers? In: Journal for the entire family law . 1989, pp. 1030-1034.
  • Klaus Schreiber: The liability of the guardian in the area of ​​tension between public and private law. In: Archives for civilist practice . Vol. 178, H. 6, 1978, pp. 533-550.
  • Michael Schulz : Liability of the employing corporations for officials? In: Care Law Practice. 1995, pp. 56-58, online (PDF; 182 kB) .
  • Rudolf Stahl, Thomas Carlé: The tax status of the supervisor of a person being treated with dishonest tax and the risks of criminal tax law. In: German tax law . Vol. 38, No. 30, 2000, pp. 1254-1248.

Web links

Individual evidence

  1. ↑ cf. OLG Hamm Rpfleger 1966, 17; BayObLG BtPrax 1994, 35 = FamRZ 1994, 323.
  2. ↑ LG Krefeld Rpfleger 2001 302nd
  3. ↑ BayObLG FamRZ 1991, 481.
  4. ↑ OLG Düsseldorf, BtPrax 1999, p. 74 = FGPrax 1999, p. 54 = FamRZ 1999, 1169, similar to LG Kiel 3 T 49/00 of February 9, 2000 and OLG Schleswig 2 W 43/00 of March 22, 2000, FamRZ 3/2001, II.
  5. ^ LG Offenburg FamRZ 1997, 900.
  6. ↑ OLG Hamm Rpfleger 1985, 294; BayOBLG FamRZ 1988, 320 and FamRZ 1991, 1481.
  7. ↑ OLG Karlsruhe DAVorm 1967, 126.
  8. ↑ a b OLG Hamm FamRZ 2001, 861.
  9. ↑ BGH FamRZ 1964, 199.
  10. ↑ z. B. OLG Zweibrücken FGPrax 2004, 75 = FamRZ 2004, 422 = Rpfleger 2004, 422.
  11. ↑ z. B. OLG Schleswig, FamRZ 1997, 1427 = NJWE-FER 1997, 105.
  12. ↑ BGH BtPrax 1995, 103 = FamRZ 1995, 282.
  13. ↑ BGH, NJW 1987, 2664 = FamRZ 1987, 904.
  14. ^ BGH, judgment of September 18, 2003 , Az. XII ZR 13/01, full text.
  15. ↑ BSG, judgment of April 15, 2002 , Az. B 12 KR 14/01, full text; FamRZ 2002, 1471.
  16. ^ LG Berlin BtPrax 2001, 83.
  17. ^ LG Cologne FamRZ 1998, 919, OVG NRW FamRZ 2001, 312.
  18. ↑ OLG Zweibrücken FamRZ 2000, 1324 = NJW-RR 2001, 151.
  19. ^ LG Berlin FamRZ 2000, 1526.
  20. ↑ LG Frankfurt BtPrax 1994,216 (= FamRZ 1994,1617); OLG Frankfurt, BtPrax 1996,71.
  21. ↑ other opinion are z. B. the LG Berlin BtPrax 1996, 111 = FamRZ 1996, 821; LG Freiburg FamRZ 2000, 1316.
  22. ^ LG Oldenburg FamRZ 1997, 899.