Supervisor duties

The supervisory duties of a legal supervisor are, as the legal representative, to represent the interests of the respective supervised person within the scope of his / her area of responsibility. Here, the supervisors have to take into account the well-being, but also the subjective wishes of the supervised. The supervisor also has duties to the supervisory court.

Legal representation of the person in care

Legal basis: § 1902 BGB , § 53 ZPO

The supervisor has the task of taking care of the supervised person's affairs within the scope of his / her scope of duties and of representing them as legal representative in and out of court. Legal acts of the supervisor therefore take place in the name of the supervised person ( § 164 BGB). Highly personal legal transactions such as marriage or the drawing up of a will or participation in political elections are excluded from representing the person under care .

In addition, the person being looked after can continue to conduct legal transactions independently if there is no reservation of consent ( Section 1903 BGB ) and he is not incapable of contract ( Section 104 No. 2 BGB ). The duty of the supervisor to meet with the supervised person and the orientation towards his or her wishes serve to avoid contradicting measures.

According to Section 1795 (1) No. 1 BGB, representation is excluded in the case of so-called self- dealing ( Section 181 BGB ), i.e. transactions between the supervisor and himself or a representative of a third party or in transactions with the spouse, registered partner or relatives (in a straight line ) of the supervisor.

Wishes and well-being of the cared for

Legal basis: § 1901 BGB

According to the will of the law, the welfare of the person being looked after is primarily to be determined by the person being looked after . According to the law, the supervisor should be of help to those affected and not patronize them . The supervised person should continue to decide on his own affairs, insofar as this can be justified. The supervisor may not impose a frugal lifestyle on the person being cared for against their will if the appropriate funds are available. The carer can decide how his money is used, but the carer will be entitled to withhold the necessary monthly costs for rent , clothing and food. Everyone also determines the degree of their own order, but in a life between mold and faeces, the state-appointed supervisor will have to do something about this condition. It is a matter of dispute whether the supervisor is even allowed to enter the apartment of the person being looked after if the person being looked after refuses to do so, since there are no legal regulations for implementing Article 13 of the Basic Law . Zimmermann thinks yes, if the task area "Housing affairs, access to the apartment " is set up, but also gives the opposite opinion.

Wishes that were expressed before the need for care occurred in relation to the person of the carer or the lifestyle are also significant, unless the person being cared for has changed his mind in the meantime. If the wishes of the person being cared for cannot be determined, the carer should try to find out the presumed will of the person concerned. Information from related parties is useful for this. Clues should also arise from the previous lifestyle. This also plays a role in particular when it comes to a person who is no longer able to express themselves whether or not life-prolonging measures should take place.

The supervisor may only act against the will of the supervised person if the wishes of the supervised person are contrary to his or her well-being or are unreasonable for the supervisor ( Section 1901, Paragraph 3 BGB), whereby the well-being of the supervised person is primarily to be determined by himself. Because part of the well-being is the opportunity to shape one's own life within the scope of one's abilities ( § 1901 BGB). The courts up to the Federal Constitutional Court made it clear: “The state does not have the right to educate, improve or prevent the person concerned from harming himself.” If it has “free will”. The protection of third parties is not the responsibility of the right to care. The state laws for the protection of the mentally ill are responsible for this.

Meeting obligation

Legal basis: Section 1901 (2) BGB

The supervisor must get an idea of what the supervisor has of what he would like and what he does not want through personal contacts and discussion of important upcoming decisions ( Section 1901 (2) BGB). How often such contacts (home visits) should take place has so far often been the subject of legal disputes with professional carers regarding the caregiver's remuneration. Many courts used weekly to fortnightly contacts. However, this can only be a guideline; the need for personal contacts can be higher or lower in specific individual cases.

Rehabilitation order

Legal basis: § 1901 Paragraph 4 BGB

The supervisor has a general rehabilitation assignment . Within the scope of the tasks assigned by the court (mostly health care or residence regulations), the supervisor should explore possibilities and make them accessible to cure diseases and disabilities , to alleviate their consequences or to prevent them from getting worse. Such measures often involve access to medical treatments, cures , outpatient and inpatient care and accompanying aids.

Supervised people often see the help of a supervisor as an advantage rather than a disadvantage. A professional carer is in a better position to enforce applications for social benefits or to ensure that demented residents are given medication for the well-being of the person being cared for and not to calm them down .

Responsibilities of the supervisor and special duties

The appointment is made depending on the requirements for certain areas of responsibility (e.g. care for health, property management, right of residence , housing matters). Only if the person concerned can no longer deal with any of his own affairs due to his illness or disability, a supervisor should be appointed “for all matters”. In this case, according to Section 13 of the Federal Electoral Act (as well as the parallel provisions of other electoral laws), the right of the person concerned to vote expires . However, this comprehensive care does not correspond to the meaning of the new care law and should therefore remain a rare exception. The exclusion of the right to vote in Bundestag and European elections was deleted on July 1, 2019, and most federal states have now also adapted the regulations in their electoral laws.

Residence regulations / housing matters

Legal basis: § 1907 BGB

The tasks of determining residence , which are often assigned to supervisors, are often viewed as (partially) identical to those relating to housing matters. Insofar as this is the case according to local practice, the scope of duties includes all matters that have to do with the living situation of the person being looked after. The focus is on activities that have to do with the procurement and maintenance of living space for the supervised. Thus, contacts and discussions with housing associations, other landlords, housing authorities , housing benefit offices , brokers , housing managers , caretakers and similar persons and offices must be conducted. Possibly. are for Supervised applications for subsidized housing certificates to ask, applications for housing benefit or Lastenzuschuss etc.

Furthermore, apartments are to be viewed before renting, agreements to be made on renovation are to be made, and contractual obligations to be fulfilled upon termination of tenancies (swept-over handover of living space, key handover), provided that the person being looked after has the necessary financial resources.

Insofar as tenancies have to be terminated, termination of tenancies and the dissolution of households are also part of the supervisor's area of responsibility. For this, a supervisor needs the approval of the supervisory court ( Section 1907, Paragraph 1, Clause 1 BGB). Since the termination is a unilateral declaration of intent , the approval must have been given before the declaration of termination ( § 1831 BGB). However, a termination agreement can be concluded before the application for judicial approval - the effectiveness of which then depends on the judicial approval.

Forced treatment

Legal basis: § 1906 BGB, §§ 312 ff. FamFG

Deprivation of liberty by the supervisor according to Section 1906 of the German Civil Code (BGB) is only permissible if the person under care is at risk with the approval of the supervision court.

An accommodation to avoid self-harm presupposes

that there is a legal reason for the risk of suicide or self-endangerment ( Section 1906 (1) No. 1 BGB) due to mental illness or disability, or that without the placement a medically necessary measure cannot be carried out according to Section 1906 (1) No. 2 BGB and the The person being cared for does not recognize the necessity of the medical measure due to mental illness or disability or cannot act on the insight;

that the placement is necessary and proportionate.

The compulsory treatment is only be necessary as part of the housing or the equivalent now stay in an institution possible and will have to avert an imminent serious damage that can be averted by any other reasonable measure and its benefits clearly outweigh the impairment. The approval of the supervisor and the approval by the supervisory court require that an attempt has been made beforehand to convince the person in care of the necessity of the medical measure.

A legal guardian is often appointed because the person concerned does not take the medication prescribed for him or does not consent to other treatment measures (hospital stay). However, the person being cared for may not be forced to take medication or to take treatment measures if they can freely determine their will. A carer who is capable of giving consent may not be treated against his or her will. You are only unable to give your consent if you cannot determine the nature, significance and scope (risks) of the measure.

Possible reasons are e.g. B. the denial of essential medication or food due to mental illness, the regular and haphazard wandering around in traffic or the necessary detox phase after drug or alcohol abuse (in contrast to the subsequent withdrawal treatment, which should not be a reason for accommodation).

Accommodation is not considered if the intended treatment does not promise sufficient success, e.g. B. an alcohol withdrawal treatment against the will of the cared for.

Custodial accommodations (also called "semi-closed" on stations), bed rail, fixations and freedom restrictive drug therapies are separately according to § 1906 to approve para. 4 BGB.

The supervisor may only order detention as long as the medical requirements are met. This means that the supervisor has to end the deprivation of liberty even if the medical practitioner no longer confirms the need for deprivation of liberty ( Section 1906 (3) BGB). If the attending physician requests the discharge, the supervisor must comply, otherwise he would participate in a prohibited deprivation of liberty ( Section 239 of the Criminal Code ). The supervisor must report the end of the placement to the supervision court ( Section 1906, Paragraph 3 of the German Civil Code).

In the event of significant risk to others, the regulatory authority must apply for the laws for the mentally ill ( PsychKG ) of the federal states. Anyone can suggest a procedure according to the PsychKG. Due to the illness, the person affected does not have to be able to decide independently about his treatment. This is often the case with diseases of the schizophrenic type or manic depressive diseases .

Healing treatment

Legal basis: § 1904 as well as §§ 33 ff. , § 223 , § 228 StGB

Every medical treatment is bodily harm according to the legal opinion . It is only not illegal if the treatment is consented to. A doctor can only act in two cases without the consent of the patient / carer / authorized representative. According to § 34 StGB ( emergency aid ) and according to § 32 StGB ( self-defense ). Consent by the supervisor / authorized representative in dangerous treatments must be approved by the supervisory court according to § 1904 BGB.

In order to give consent to particularly dangerous treatments, the caregiver needs a supervisory court approval if there is a disagreement between him and the doctor regarding the interpretation of the patient's will ( § 1904 BGB). The number of approved measures according to § 1904 BGB (therapeutic measures) has been declining for years.

sterilization

Legal basis: § 1905 BGB

For the consent to a sterilization of the cared for must acc. In accordance with Section 1899 (2) BGB, a special supervisor must always be appointed. Special requirements for consent must be observed here.

Post and telephone control

According to Section 1896 (4) of the German Civil Code, the court can appoint a supervisor who also has the authority to control the data subject's telecommunications traffic, to open and stop the mail; this must then be explicitly stated in the resolution ( Section 1896 (4) BGB); The judge , not the senior judge , is responsible for such a decision . The supervisor can be given such a range of tasks if the communication of the person concerned poses significant dangers for the person concerned or if it is likely to jeopardize public safety or order.

Asset care

Legal basis: §§ 1802 to 1825 BGB

The demarcation of the range of tasks of asset management from some other typical tasks is sometimes difficult. In the past, for example, individual courts have found that there are doubts as to whether the assertion of social assistance or maintenance claims is part of property management. Especially when it comes to social law claims , there is also correspondence with the task force of official affairs. It is often the case that individual tasks can be assigned to several task groups.

Assertion of payment claims

According to the general opinion, the assertion of all kinds of payment claims to which the supervised person is entitled belongs to asset management. These can be payment claims from an employment relationship ( wages , etc.), payment claims that the person being cared for as the owner of the apartment (rent, ancillary rental costs), claims from an insurance relationship (e.g. private health insurance), repayment claims against others due to unjust enrichment or tort ( damages , Compensation for pain and suffering ), to name just a few claims under civil law. Claims based on inheritance law ( inheritance share , legacy , compulsory portion claims ) can also be included. However, in practice it is often the case that the assertion of inheritance claims is formulated as a separate task area. If this is not the case, however, they are part of the property management task.

In addition, public-law payment claims can belong to the scope of duties, e.g. B. Social benefits of all kinds, such as unemployment benefit I or II , social assistance including basic security , pensions of all kinds, sickness benefit , housing benefit , child benefit , education benefit , war victims compensation , victim compensation , etc. For most of the carers this is the main part of the work of the carer in this task area.

Checking claims that are directed against the person being cared for

The defense against unjustified and the satisfaction of justified payment claims against the cared for belongs to the scope of duties, z. B. Payment claims that are raised by third parties (seller, landlord, health care provider, injured party). Here too, claims under private law or public law can be involved. Examples of the latter: repayment of wrongly received pensions and other social benefits , tax payments, fines , fines .

When caring for people who are only covered by statutory health insurance, there is less or no effort for checking and paying bills, as doctors and other health care providers settle accounts directly with the health insurance company. When looking after people who have private health insurance or supplementary insurance, the supervisor must check the correctness of the invoices, submit them to the private health insurance company and arrange for payment ; For inpatient hospital stays, however, clinics can also bill a private health insurance company directly.

If a (professional) supervisor cancels an insurance - such as a private supplementary insurance - he must, according to a judgment of the Higher Regional Court in Koblenz, carry out a risk assessment beforehand and otherwise may be. U. obliged to pay damages if a foreseeable insured event occurs.

Protection of the supervised person's assets against access by third parties

It is also one of the duties of the asset manager to prevent unauthorized access by third parties, e.g. B. by revoking bank powers of attorney if there is an abuse of power of attorney. Furthermore, the tasks of the asset manager include filing tax returns ( income tax , gift and inheritance tax , property tax , dog tax , etc.) as well as applying for non- assessment certificates from the tax office and submitting interest exemption declarations to the bank.

House and real estate management

Management of houses, condominiums and land owned by the person being looked after is also part of the task area. Here, too, the supervision court occasionally determines the scope of duties separately. As far as the house and land management is one of the supervisory tasks, the payment of public charges (property tax, land transfer tax , sewage charges , street cleaning fees , etc.) as well as the maintenance of the property as well as the public-law traffic safety obligation (e.g. Winter). Also, the administrator can real estate purchase and sell and borrow ( mortgages , mortgages , etc.). For this he usually needs the approval of the supervisory court ( § 1821 , § 1822 BGB).

Assets that are not required on an ongoing basis must be invested by the supervisor

In the case of funds from the person being cared for that they do not need for their current living expenses (usually in the next 3 months), the carer must ensure an interest-bearing financial investment ( Section 1806 BGB). In doing so, according to the general supervisory duties, he must take into account the wishes of the person being cared for and the requirements of ward security ( Section 1901, Paragraph 2 BGB)

Tax obligations

If the support includes tax obligations, the supervisor must ensure that tax returns etc. are submitted. Otherwise he exposes himself to the risk of his own tax liability.

The financial investment has to be made secure

Legal basis: § 1807 BGB and related ordinances

Insofar as the supervisor has to invest money, this must always be done safely. On the one hand, ward security means that the financial investment is protected from a risk of loss arising from the bankruptcy of the bank holding the account. Most banks in Germany belong to a deposit insurance fund. In addition , a security is only bulletproof if it is itself protected against losses (e.g. risks of price fluctuations). Bulletproof forms of investment are mentioned in Section 1807 of the German Civil Code, although nowadays mainly public investments (e.g. federal treasury bonds ) and fixed-income investments at banks and savings banks are of greater importance. The classic savings books and call money accounts are also among the bulletproof forms of investment.

The supervisor also needs the supervision court approval for the safe investment, unless he belongs to the group of "exempted" supervisors according to § 1908i Abs. 2 BGB, that is the closest family members as well as association and authority supervisors .

The supervisory court can allow exceptions

The gilt-edged investments are a conservative form of investment that usually does not allow high interest payments to be expected. Therefore, § 1811 BGB allows the supervisor a different type of investment after prior approval of the supervisory court , z. B. in stocks or securities funds (mostly in bond funds ). Without exception, all supervisors require court approval. Such approval can be granted if economic asset management is guaranteed. In this case, however, the risk of losses remains with the supervisor. Fund investments have to be made with "a ward lock " ( § 1809 , § 1816 BGB). Ie that the supervisor for dispositions, z. B. Sales of securities, again a court approval is required ( § 1812 BGB).

Obligations towards the supervisory court

The supervisor is obliged to provide information to the supervisory court

Legal basis: §§ 1837 ff. BGB

The supervision of the supervisory court extends over the entire activity of the supervisor; it is not limited to individual areas of responsibility, such as asset management ( Section 1837 (2) BGB). The supervisory court has the option of requesting information from the supervisor about the management of the supervision at any time ( § 1839 BGB). Such information can be requested in writing or in person. Responsible before the Court this is the judicial officer . In the event of a breach of duty , a fine can be imposed ( Section 1837 (3) BGB).

The supervisor has to report regularly on his activities

In addition to individual information, however, the supervisor must report to the court once a year about the management of the supervision without being asked ( § 1840 BGB). Forms provided by the court can also be used for this purpose. In addition to the report on the personal circumstances of the person being supervised, accounts must also be submitted for asset management, provided that the advisor is also responsible for asset management. This means that a list of all account transactions with the corresponding receipts must be submitted. In this case, a list of assets must also be drawn up at the beginning of the supervision ( Section 1802 BGB).

Approval must be obtained before making many decisions

A number of particularly important decisions by the supervisor must be approved by the supervisory court . Such permits are generally required prior to the intended legal act ( Section 1829 BGB). Even if the manager for a matter has court approval, it remains even for this question responsible , a care court approval allows an action only. The property rights approval obligations also apply to guardians of minors and carers .

literature

Horst Deinert , Kay Lütgens, Sybille M. Meier: The liability of the supervisor. 2nd Edition. Cologne 2007, ISBN 978-3-89817-594-4 .
Sybille Meier / Horst Deinert: Handbook of care law. Heidelberg 2001, 2nd edition 2016, ISBN 978-3-8114-5202-2
Jürgens, Kröger, Marschner, Winterstein: compact care law. 5th edition. Beck, Munich 2002, ISBN 3-406-49717-9 .
Karl-Dieter Pardey: Care and accommodation law in practice. Nomos, Baden-Baden 2005, ISBN 3-8329-1368-8 .
Wolfgang Raack, Jürgen Thar: Guide to care law. 5th edition. Bundesanzeiger-Verlag, Cologne 2005, ISBN 3-89817-402-6 .
Jürgen Seichter: Introduction to care law. A guide for care law practitioners, health care professionals and relatives of those in care . 3rd, revised edition. Berlin / Heidelberg 2006, ISBN 3-540-23680-5 .
Thomas E. Voigt: The duties of the supervisor. Hamburg 1994, ISBN 3-9803770-1-6 .
Rudolf Winzen: Compulsion. What to do with legal support and accommodation. 2nd Edition. Zenit-Verlag, Munich 1999, ISBN 3-928316-08-7 .
Walter Zimmermann : Care law - help for those who are cared for and carers. 7th edition. German Taschenbuch-Verlag, Munich 2006, ISBN 3-423-05604-5 .

Web links

General

Legal basis in the BGB (§§ 1901 ff.)

Jurisprudence

Individual evidence

↑ Thuringian Ministry of Justice: Working aids for voluntary supervisors (PDF; 158.94 kB)
↑ BayObLG FamRZ 1991, 481.
^ LG Berlin FamRZ 1996, 821.
^ LG Frankfurt FamRZ 1994, 1617; Bauer FamRZ 1994, 1562.
↑ BGH: Judgment of July 22, 2009 - XII ZR 77/06: Significance of requests for care (skm-bistum-trier; pdf)
↑ BVerfG, decision of June 23, 1999 , Az. 1 BvL 28/97, full text; NJW-RR 1999, 1593, BayObLG FamRZ 2002, 1225.
↑ current version § 1906 BGB Information of the Federal Association of Professional Carers ( Memento from October 19, 2013 in the Internet Archive )
↑ Knittel § 1904 Rn. 5; Kern MedR 1991, 68.
↑ BGH NJW 1972, 335; OLG Hamm FGPrax 1997, 64.
↑ A professional carer can be held liable for unlawful termination of private health and long-term care insurance. In: btdirekt.de. May 20, 2019, accessed December 1, 2019 .
↑ cf. Pump / Krüger, How can supervisors (voluntary supervisors and professional supervisors) avoid their tax liability according to § 69 AO from asset management ?, BtPrax 2013, 51