Supervision (law)

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The legal support is a German legal institute , through which adults receive support, help and protection, whereby a (legal) supervisor appointed for them receives the power of representation under judicial supervision , but is obliged to observe the will of the person under care internally. The supervision was carried which entered into force on 1 January 1992 Childcare Act introduced and in the ff §§ 1896th of the Civil Code regulated (BGB).

For the legal situation in other countries see under adult protection law .

Legal care is not social, nursing or health care. It has taken the place of the previous guardianship over the age of majority and the “ frailty custody ” and is limited to the required areas of responsibility. The legal support enables legal acts on behalf of the person under care (§ 164 BGB), who can no longer carry them out themselves.

Critics are of the opinion that care in practice often amounts to incapacitation, although the legislative aim of the reform was “care instead of incapacitation” in order to help those affected to lead a self-determined life (see also inclusion (sociology) ). The “ basic right to self-determination” results from Article 2, Paragraph 1 of the Basic Law (GG).

As of December 31, 2015, there were around 1,276,538 supervision proceedings pending in Germany . The number of proceedings was thus reduced by around 2.3 percent compared to the previous year. The decrease occurred for the first time in 2012. The "care density", i.e. the number of care procedures per thousand inhabitants, differs in the federal states: Mecklenburg-Western Pomerania (22.1), Saxony-Anhalt (21.5) and Saarland (21 , 4) have the highest, Baden-Württemberg with 11.2 ‰ the lowest by far; the average care density was 16.2 per thousand . The proportion of so-called professional care is increasing regularly and rose by 14.2% to 34.32% in 2013 compared to 1992. In Germany, 12,000 professional carers , employees from over 800 care associations and several hundred thousand volunteer carers are available for legal support .

Article 46 of the 2018 Annual Report of the UN Human Rights Council recommends states to repeal laws that, like the right to care, allow a proxy decision. Instead, voluntary measures that support the decision of the person concerned should be promoted. In contrast to the UN Disability Rights Convention (CRC), the recommendations of the UN Human Rights Council have no legal force.

Arranging supervision

In accordance with Section 1896 of the German Civil Code, the appointment of a supervisor can be made at the request of the person concerned or ex officio . A suggestion can come from any person. The suggestions can be submitted to the supervisory authorities as well as to any other court. The decision on whether to appoint a supervisor is incumbent on the supervisory court. Usually this is a department of the local court . In the Württemberg part of Baden-Württemberg , until the end of 2017, the notary was responsible for appointing supervisors in accordance with the then Baden-Württemberg state law on voluntary jurisdiction (exceptions to notarial jurisdiction in Württemberg: Section 37 LFGG). The supervision court has to check whether the strict requirements of § 1896 BGB in connection with § 278 and § 280 FamFG are met.

In § 1896 BGB the following are mentioned in detail:

  • The person concerned is of legal age .
  • The person concerned can no longer take care of his matter in whole or in part.
  • The cause is a mental illness or a physical, mental or emotional disability.
  • Other ways to help, e.g. B. neighbors or social services or agents are not available.
  • Consent of the person concerned with the appointment of a supervisor. If the person concerned is no longer able to freely determine his or her will due to illness, it is possible to appoint a supervisor against his / her expressed will.

In the law on the family law procedure FamFG two further requirements are mentioned:

  • At least one medical certificate is available. If the supervisor is to be appointed against the expressed will of the person concerned, an expert opinion must be available ( Section 280 FamFG).
  • The supervised person was previously heard by the judge ( Section 278 (1) FamFG).

Of legal age

A supervisor can only be appointed for adults . For minors, a guardian can be appointed as the legal representative of the ward or a carer or the youth welfare office can be appointed to assist. However, if it is already certain that a minor will later need a carer, the caring process can be carried out as early as the age of 17; In this case, the appointment of a supervisor becomes effective upon reaching the age of majority ( Section 1908a BGB).

Necessity

According to 1896, Paragraph 2, Clause 1 of the German Civil Code, a supervisor may only be appointed for those areas of responsibility in which the supervised person needs help. If, for example, the person being cared for is only impaired in some areas of life, then the care must be limited to these, e.g. B. Residence determination, asset management or health care. The supervision court determines the areas of responsibility for which supervision is necessary.

Mental illness or disability

In order to arrange care, it is necessary that the person being cared for is not able to take care of his / her affairs in whole or in part due to the illnesses and disabilities listed in 1896 (1) BGB .

  1. Mental illnesses: This includes all mental illnesses that cannot be physically justified; but also mental disorders as a result of illnesses (e.g. meningitis ) or brain injuries . This also includes addictions (e.g. alcohol or drug addiction) if the severity is appropriate; However, the addiction must be causally related to a disability or mental illness or a psychological state that can be traced back to the addiction must have arisen. For this reason, alcoholics and drug addicts cannot be appointed as a carer as long as they have an addiction. The same applies to neuroses , obsessive-compulsive diseases or personality disorders (formerly: psychopathies );
  2. Intellectual disabilities : This includes congenital and intelligence defects of various degrees of severity acquired during birth or through early childhood brain damage ;
  3. Mental disabilities: These are permanent mental impairments that have arisen as a result of mental illness. This also includes organic brain impairments ( dementia ) due to increasing aging (e.g. dementia of the Alzheimer's type );
  4. Physical disabilities : These can also be the reason for the appointment of a supervisor, provided that they partially or significantly impair the ability to take care of one's own affairs (e.g. in the event of permanent inability to move or deafblind ); the appointment of a supervisor takes place only at the request of the person concerned.

The largest group of people for whom a caregiver is appointed are the elderly with Alzheimer's disease or other dementia. A legal guardian is also often appointed in adulthood for people with intellectual disabilities.

Other help

The appointment of a supervisor is not required if the affairs of the person concerned can also be taken care of by other aids without the involvement of a legal representative ( Section 1896 (2) sentence 2 BGB). Other help can e.g. B. by family members, neighborhood help or social services or authorized persons. The care according to the BGB is therefore subsidiary (subordinate). By inserting the word “legal” in § 1896 BGB in 1999, it was made clear that care work constitutes legal representation.

If it is only a matter of the fact that someone can no longer deal with purely actual matters independently (e.g. no longer running their household, can no longer leave the apartment, etc.), this usually does not justify the appointment of a supervisor. Normally, very practical help will be required here (e.g. keeping the apartment clean , providing food ) for which a legal representative is not required. In practice, especially if there are no other helpers, a supervisor is appointed to organize the help. Even the employees of the agencies that would have to provide the priority help in order to avoid care often wrongly assume that care is a priority.

With a durable power of attorney can be his in case of need for care of a person trust authority for any applicable legal transactions issue, thus avoiding the provision of a service. Certain formal requirements may have to be observed for this.

However, it can e.g. For example, it may be that care is necessary despite the presence of family members or authorized representatives , namely when these persons act against the well-being and will of the person concerned or can no longer be controlled by them. In addition, the above-mentioned social assistance must be applied for, organized and, if necessary, paid for. If the person concerned can no longer act himself, he needs a person to represent him. An authorized representative is entitled to represent from the power of attorney, the supervisor receives the power of representation with his appointment by the supervision court. The advantages and disadvantages of a health care proxy are dealt with in the article Health care proxy.

Care against the will of the person concerned

Care against the expressed will of the person being cared for can only be ordered if the person concerned lacks the ability to freely form his or her will and to recognize the importance of care for his or her life ( Section 1896 (1a) BGB). If there is only a physical disability, you can only appoint a supervisor upon your own request; unless communication with the person concerned is not possible at all ( locked-in syndrome ).

If the person concerned poses a significant, concrete risk for himself or a third party due to a mental illness or a mental or emotional disability, an accommodation procedure according to § 1906 BGB or the mental health laws of the federal states comes into consideration ( § 312 FamFG).

Supervision procedure

The supervision order takes place in the procedure of the voluntary jurisdiction ( §§ 1 to 110 and 271 to 341 FamFG), for which special procedural guarantees have been established. The supervised person is always able to take legal action ( Section 275 FamFG) and can, for example, lodge a complaint against decisions and / or appoint a lawyer or other suitable legal representative to represent him ( Section 276 (4) FamFG).

The supervised person must be assessed by an independent expert. A medical certificate (which you may have submitted yourself) is only sufficient if the person concerned applies for a supervisor himself. In urgent cases, a medical certificate is also sufficient; however, the assessment must be made up for. In this case, according to §§ 1846, 1908 i BGB, the supervision court is also authorized to take the necessary measures itself.

Of § 30 para. 1 FamFG in conjunction with § 406 ZPO , it follows that the reviewers rejected or opinions may be challenged if grounds exist, the distrust of impartiality justify the appraiser and the fear of bias of the expert justified ( § 42 ZPO).

The supervisor selection and the appointment of the chosen supervisor takes place within the supervision process. The court cannot reject a person suggested by the person concerned as a guardian on the grounds that another person is better suited ( Section 1897 (4) BGB). Under certain circumstances, several supervisors can be appointed for one person being cared for ( § 1899 BGB), e.g. B. also a prevention officer . A special supervisor ( sterilization supervisor ) must always be appointed for the sterilization .

Legal capacity and rights of the person under care

The earlier “ incapacitation ” was abolished with the care law . Establishing legal support does not affect the person's ability to conduct business , tort , marital or testamentary testimony . The right to vote was excluded until mid-2019 in the case of “ order of supervision in all matters ”.

According to § 1902 BGB, the supervisor is the legal representative in the established task groups. Both the person concerned and the supervisor can act legally. Therefore, the supervisor should discuss all important matters, as stipulated in Section 1901 of the German Civil Code, with the supervised person so that there are no contradicting actions. Only people who are permanently in a state of pathological disruption of mental activity that precludes the free determination of their will are not legally competent ( § 104, 105 BGB ). The purpose of the guardianship law, which has existed since 1992, is not to incapacitate the person concerned, in contrast to the earlier guardianship law .

Anyone who concludes business to their disadvantage in a state of legal incapacity must prove the legal incapacity so that it can be established that the legal transactions carried out are void. This proof is not required if care has been set up with the reservation of consent . There is a liability risk for the bank in the event of payments to the legally incompetent custodian.

Reservation of consent

Insofar as it is necessary to avert a significant risk to the person or the assets of the person being cared for, the custodial court may separately order that the custodian requires the custodian's consent to protect him or her for a declaration of intent (and thus for the conclusion of contracts) within the scope of the custodian's task area : ( Reservation of consent according to § 1903 BGB). This in fact leads to the limitation of legal capacity .

However, certain declarations of intent are not affected, even if the reservation of consent is ordered. This includes highly personal decisions for which care is generally not possible, such as entering into marriage or drawing up a will ( Section 1903 (2) BGB).

Fundamental rights

A person concerned can always refer directly to his or her constitutional rights . In the BGH decisions XII ZB 69/00 and XII ZB 236/05 it says:

“In the case law of the Federal Constitutional Court it has been pointed out that the guardian performs public functions in the context of welfare and therefore the ward can also invoke his or her fundamental rights in relation to the guardian's actions; nothing else applies to the relationship between the supervisor and the supervised. "

The person being looked after is entitled to his / her basic rights, e.g. B. to the supervisor or the supervisory court , which orders the supervision, selects and controls the supervisor and, if necessary, makes individual decisions within the framework of judicial approval obligations. The guardianship court exercises direct judicial authority against the supervisor and is therefore directly bound by the fundamental rights. In addition to the general personal right ( Art. 2 GG), postal and telecommunications secrecy ( Art. 10 GG), the right to freedom of movement ( Art. 11 GG), the basic right to housing ( Art. 13 GG), the property right come into consideration in the care law environment ( Art. 14 GG), the right to be heard ( Art. 103 (1) GG) and the legal guarantees in the event of deprivation of liberty ( Art. 104 GG).

There is also a clear third effect of the fundamental rights. Since the supervisor is not only subject to the supervision of the supervisory court in the case of special approval obligations, but also in general (and can be subject to orders and prohibitions, including fines , cf. § 1837 Paragraphs 2 and 3 BGB), the court has to observe the fundamental rights to involve the supervisor as part of his supervision. A possible supervisor dismissal according to § 1908b Abs. 1 BGB can also be based on this.

Art. 2 of the Basic Law guarantees everyone a life in dignity . Self-determination, freedom of the person, physical integrity and Art. 3 equality before the law are among the most important basic rights. These fundamental rights may be encroached upon by law, with due regard for the essence of the law ( Article 19 (2) of the Basic Law). Therefore, the well-being of the cared for is primarily to be determined by himself. Only the law regulating the consent under care law of 18 February 2013 to a compulsory medical measure was able to restrict the basic rights of the person cared for to carry out compulsory treatment.

While the former incapacitation procedures significant shortcomings in the above fundamental rights had, these are support processes and the accommodation process with numerous procedural rules (in particular for the process capability , the guardian ad litem appointment and personal consultation ) suitable in principle, the protection of fundamental rights to satisfy. As of September 1, 2009, the procedure is described in Section 271 of the FamFG ( law on the procedure in family matters and in matters of voluntary jurisdiction ). However, the longest possible review period for the appointment of supervisors has been extended from five to seven years ( Section 295 (2) FamFG, previously Section 69 FGG).

The supervisor is also responsible for ensuring that the person's basic rights are not impaired by other government agencies (authorities, courts). For this he has legal means of all kinds including criminal charges as well as official liability claims according to § 839 BGB i. V. m. Article 34 of the Basic Law. In the internal relationship between the supervisor and the person supervised, the basic rights radiate within the framework of the provision of Section 1901 Paragraphs 2 and 3 of the German Civil Code. The consideration of wishes of the person being cared for in the context of the caregiver's activity as well as their participation in the decision making of the carer within the scope of the obligation to discuss mentioned there are (also) to be seen under the aspects of the protection of the person under care's fundamental rights. However, it must be clearly stated that the formation of a free will (unimpaired by diseases) is impaired in many cared for, so that the caregiver has a decision-making leeway. However, the BGH made it clear in decision XII ZB 2/03 that the welfare of the person being looked after is not to be determined objectively, but rather subjectively according to the individual presumed will of the person being looked after. Article 2 I GG requires that a decision is to be made in principle as the person under care would decide for himself, taking into account his current situation, if he could.

Process capability of the supervised

Legal basis: §§ 51 to 53 ZPO, § 11 VwVfG

Contrary to what is described above, in other legal proceedings (civil, financial, social and administrative court proceedings ) the person being looked after is incapable of litigation if he is either incapable of doing business i. S. of § 104 BGB or a reservation of consent ( § 1903 BGB) is ordered. In addition, he is incapable of litigation in specific proceedings if the supervisor is conducting the proceedings for him. This applies even if he is otherwise legally competent.

This is intended to counteract competing and contradicting actions of the supervisor and the supervised person - whereby the supervisor is naturally bound to the wishes of the supervised person within the framework of § 1901 Paragraphs 2 and 3 BGB. The same applies to all kinds of official procedures, as reference is made to Section 53 of the German Code of Civil Procedure (ZPO) in the administrative procedural laws and in SGB ​​X and the tax code .

Duties of the supervisor

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 . The supervisor should help the person concerned and not patronize them . The supervised person should decide on his own affairs, as far as this can be justified. The supervisor may not impose an economical lifestyle on the person being cared for against their will if the appropriate funds are available ( § 1901 and § 1906 BGB). A carer is not allowed to commit a crime, even if the carer would commit it of his own free will .

In the field of health care, the supervisor, as the legal representative of the person concerned, must also be informed by the doctor. If the patient being cared for does not agree to this, the carer must usually comply with this will ( Section 1901, Paragraph 3 BGB). If an amicable solution cannot be found, the court will decide on the supervisor's request for information from the doctor ( Section 1837, Paragraph 2 of the German Civil Code).

Furthermore, the supervisor must report to the supervisory court at least once a year about the personal and economic circumstances of the person being supervised. The supervisor is liable for any damage caused by violating his or her supervisory duties. Professional carers need their own financial loss liability insurance , volunteer carers are insured through the respective federal state.

Self-determination and coercion

The care should serve the well-being of the cared for according to their wishes ( § 1901 BGB). In the event of a violation, the supervisor is liable for demonstrably incurred damage in accordance with § 1908i , § 1833 BGB. Only in a few cases does the person being looked after have not responded to their wishes.

Irrespective of the wishes expressed

The wishes expressed by the carer can be ignored by the carer if they run counter to his objective interest and at the same time one of the following points is present (BGH judgment of July 22, 2009):

  • The wish expressed by the person being cared for is an expression of their illness or disability.
  • Higher-ranking legal interests of the person being cared for are endangered if the carer would follow the wishes of the person under care.
  • The entire life and supply situation would worsen if the wish is granted.
  • The person being cared for does not have sufficient factual knowledge to make an informed decision.
  • The wish represents a mere consideration of expediency, which is only to be viewed as a preliminary stage to the achievement of the goal, because the actual goal intended by the person being supervised is not achieved.

These points are to be viewed critically under constitutional law, as they would even allow an act against the will of the person being cared for, who is capable of free will determination , which would be a violation of Article 2 Paragraph 1 of the Basic Law . “In the case law of the Federal Constitutional Court it has been pointed out that the guardian performs public functions in the context of welfare and therefore the ward can also invoke his or her fundamental rights in relation to the guardian's actions; nothing else applies to the relationship between the supervisor and the person being supervised ”, according to the BGH (XII ZB 69/00 and XII ZB 236/05). "The state does not have the right to educate, improve or prevent the person concerned from harming himself" if he has free will, i.e. is legally competent ( BVerfG 22,180 (219f.); BayObLG FamRZ 1995, 510 ). If a person being cared for is not able to freely determine his or her will, the individual presumed will is to decide as he would decide with free will (BVerfG - 1 BvL 8/15; BVerfG 2 BvR 1549/14 - 2 BvR 1550/14).

Compulsory powers of the supervisor

Coercion may be exercised by the supervisor on the person being cared for if this is necessary for the implementation of a compulsory admission ordered by the supervisory court ( Section 326 FamFG), or during the post control ( Section 1896 IV BGB). The dispute is how cases should be handled in which the supervisor, for example, has to enter the apartment by force to search for bank documents, since the legislature has not created any legal basis for this. The higher regional court Frankfurt am Main rejected compulsory powers that go beyond the compulsory powers mentioned in the law , because on the one hand a mere assignment of tasks does not contain these powers and on the other hand Art. 13 GG also contradicts this.

“In the case law of the Federal Constitutional Court it has been pointed out that the guardian performs public functions in the context of welfare and therefore the ward can also invoke his or her fundamental rights in relation to the guardian's actions; nothing else applies to the relationship between the supervisor and the supervised. "

Medical treatment (compulsory treatment)

Every medical treatment or medical examination is an encroachment on the fundamental right to physical integrity guaranteed in Article 2, Paragraph 2 of the Basic Law . It therefore requires consent . As long as the person being cared for is capable of giving consent , that is, he is capable of making decisions, he makes his own decision; the supervisor may not consent to treatment. Whoever can determine the type, significance and scope of the medical measure and its risks and determine their will accordingly (BT-Drucks 11/4528) is capable of making decisions,

If the person concerned is incapable of making a decision, the individual presumed will according to § 1901a Paragraph 2; Section 1906a, Paragraph 1, Sentence 1, No. 3 of the German Civil Code: "If there is no living will or if the provisions of a living will do not apply to the current living and treatment situation, the supervisor must determine the treatment requests or the presumed will of the person being cared for on this basis to decide whether to consent to a medical measure under paragraph 1 or prohibit it. The presumed will is to be determined on the basis of concrete evidence. Earlier verbal or written statements, ethical or religious convictions and other personal values ​​of the person being cared for are to be taken into account in particular. ”A carer or authorized representative must therefore decide for a person who is not capable of making a decision as the person being cared for would decide if he could decide himself. Against in a true living will set out the will of the assisted but may not be traded with recourse to a supposed free will (§ 1901a, para 2 BGB. BGH decision XII ZB 03/02). Criteria that correspond to general values ​​can and must only be used if, despite careful examination, no clues to determine the individual presumed will of the patient who is incapable of making a decision can and must be used (BGH 1 StR 357/94).

If a living will contains stipulations for medical measures (treatment or non-treatment) in certain situations, these are binding if these stipulations can clearly and reliably determine the will of the person being cared for in a specific treatment situation. The doctor and the supervisor or authorized representative must observe a binding living will ( Section 1901a ; Section 1906a Paragraph 1 Sentence 1 No. 3 BGB). Disregarding the patient's will, i.e. compulsory treatment, can be punishable as bodily harm .
With the law regulating the consent under care law of February 18, 2013 in § 1906 BGB a legal basis for medical compulsory treatment in care law was created, whereby, as stated above, according to the individually presumed will of the patient, in the form of a living will may exist, according to § 1901a ; Section 1906a, Paragraph 1, Sentence 1, No. 3 of the German Civil Code (BGB) is to be decided. The procedural regulations for placement in the FamFG have also been amended.

In the absence of free will on the part of the person being cared for, the caregiver may only give his consent to compulsory treatment if he has previously made a serious attempt to convince the patient that the medical measure is necessary to avert an impending significant health risk, that no milder means are available and that the expected benefit is too expected impairment clearly predominates ( § 1906 BGB). The approval of the care court and the supervisor are required after attempts have been made to convince the person in care of the necessity of the medical measure.

In addition, compulsory treatment can be approved by the court if it takes place for the personal safety of the person concerned or in accordance with the Mentally Ill Act to protect other people, whereby the same principles must be observed as in the care law.

Compulsory treatment is only permitted in the context of accommodation or the now equivalent stay in a facility. The legislature has not issued any authorization basis for compulsory treatment in the outpatient area. Consequently, this cannot take place even if it would represent the minor intervention. An exception to this is the sterilization of the person being cared for ( Section 1905 Paragraph 1 No. 1 BGB).

According to the report of the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez, any coercive treatment that does not serve to avert an acute life-threatening condition is, according to the UN CRPD , which in the states, which they have ratified, has legal status, regardless of whether the person concerned is capable of giving consent or not.

For details see: Forced treatment , accommodation , ability to give consent , living will

Accommodation

The procedure for approving the approval of an accommodation-like measure is regulated in Section 1906 (4) of the German Civil Code (BGB) as in the case of the accommodation procedure; however, a medical certificate is sufficient instead of an expert report. However, the principle of official investigation in Section 26 of the FamFG can lead to the supervision judge obtaining an expert opinion in the event of particularly serious interference with the basic rights of the person being cared for.

Measures restricting freedom

Measures restricting freedom within the meaning of Section 1906 (4) BGB are, for example:

  • Restraint by mechanical devices (belts, straps, etc.)
  • Removal of means of transport (e.g. rollator, wheelchair)
  • Administration of sedatives

The fact that measures involving deprivation of liberty in the domestic area do not require approval ( Section 1906 (4) BGB) leads to a legal gray area and to criticism in the specialist literature.

Even if the person concerned is already in custodial accommodation, the use of further measures restricting freedom requires judicial approval.

A distinction must be made here between measures that expand freedom ; they do not require approval. After a stroke, a wheelchair can increase freedom, even if it is necessary to fix a leg to the footplate at high speed. Likewise, the changing and restraint of babies and toddlers (also in the cot or in the playpen ) to increase their own safety are not considered to be a restriction or deprivation of liberty. Similarly, security measures do not require approval for people who are already paraplegic, for example , because they do not increase their lack of freedom.

Cancellation of care

The appointment of a supervisor is not a final matter. The supervised person can apply to the supervision court to review and cancel supervision. The court is obliged to comply with the examination, unless applications are repeatedly made without new facts becoming apparent. On its own initiative, the supervision court checks at least every seven years whether the supervision should be continued unchanged. If there is no need to take action, the court must cancel the care, which often happens in practice ( Section 1908d BGB).

The supervised person can also lodge a complaint against the appointment of a supervisor. Close relatives involved in the procedure and the supervisory authority are also entitled to appeal ( Section 59 , Section 303 FamFG). The district court is responsible for the decision , provided that the supervisory court does not change the contested decision due to the filing of an appeal (remedy, Section 68 (1) FamFG).

The supervisor can also be changed or his or her range of duties can be expanded or restricted ( Section 1908b BGB). This requires a suggestion to the court.

criticism

The concept of care is euphemistic and misleading. For example, when elderly people in hospitals are asked whether they would like to be cared for, they often assume that someone is being used to help them through everyday clinical work and not that someone has been granted legally effective power of representation should. You will usually want the former, but take a critical view of the latter.

Since the ordering of care is no longer considered incapacitation , the care courts tend to order care. Then there is the demographic development: there are more old people who need legal representation. The increasing number of care orders is largely due to the increasing legalization of society: The criminal law requires z. B. that the patients must be informed about the treatment measures with all risks, whether they request it or not. Those in care must also be informed by the attending physician, but this is often not done. If a patient cannot fully follow this mentally, the appointment of a supervisor is required for legal protection.

But also nursing homes , pension providers , authorities and social service providers require cooperation obligations for legal protection, which those affected cannot fulfill: Often a single bed rail, which can undoubtedly only serve to protect against falling out because the affected person is bedridden, leads to the appointment of a carer - although it is not a restriction on individual freedom.

On the other hand, enough service providers have established themselves who offer these services and meet the demand. A “care industry” with its own economic interests has emerged. It is also argued that the liberalization of the right to care for children makes the actors more frivolous to appoint a carer because the encroachments on the rights of the person concerned are no longer as extensive as they were before 1992.

Supervision is sometimes rated quite differently by different groups as well as by supervisors and supervisors: This is mainly due to the fact that supervision is actually handled quite differently in practice, depending on the professional training and personality of the supervisor and the special circumstances of the individual case. The field of tasks with which the supervisor is confronted can be very extensive and heterogeneous. It is not unlikely that even very committed professional supervisors will feel overwhelmed or overwhelmed in the context of the (tight) flat-rate remuneration in view of the massive demands and problems of the person being cared for. Sometimes the work of the professionally active supervisor is seen as incapacitating for the person concerned. Supervisors sometimes feel (rightly or wrongly) at the mercy of the supervisor or are (rightly or wrongly) of the opinion that the supervisor is not working in their interests or even against them.

On the side of the supervisor, it is countered that without the help of their supervisor, people being cared for are much more likely to be at the mercy of their surroundings and are in urgent need of support. It is also pointed out that the self-determination and personal responsibility of the person being cared for are preserved through the care. This applies at least as long as no reservation of consent has been ordered. A reservation of consent then ultimately represents what should be avoided by the legal institution providing care, the withdrawal of legal capacity with all financial and other consequences. The supervisor claims that ultimately it also depends on the relationship of trust between the supervisor and the supervisor. The supervised person has the right to request another supervisor at any time (cf. § 1908b BGB). Whether the person being cared for is actually able to take legal action against an unpleasant or inactive carer, or whether the change of carer fails due to a revised custodial court or the inability of the person under care to speak to the office, remains uncertain in individual cases . In particular, people with a learning disability, intellectual disability or mental illness usually have difficulties dealing with courts and legal transactions.

Legally, the arrangement of care is viewed as a last resort if other means of support are not available or are unsuitable. This means that legal care takes precedence over other aids. In practice, however, it is often not checked whether other measures, for example in the context of so-called outpatient assisted living or other social assistance, would make care superfluous or whether these could pursue the same purpose.

With regard to the inclusive demands of the UN Convention on the Rights of Persons with Disabilities (UN-CRPD) , which are based on “ general human rights ”, with its guiding principle that, above all, attitude- and environmental-related barriers “disabled people” to full and equal participation or participation in society prevent, the care system should develop from its deficits and care- oriented perspective more in the direction of self-determination and participation of people with disabilities. According to the UN Technical Committee on the Convention on the Rights of Persons with Disabilities, the instrument of legal support is incompatible with the UN Convention on the Rights of Persons with Disabilities. The committee recommended that the Federal Republic of Germany abolish all forms of substitute decision-making and replace it with a system of supportive decision-making. In addition, the Federal Republic should develop professional quality standards for supportive decision-making mechanisms.

The most recent ICF classification ( International Classification of Functioning, Disability and Health ) of the World Health Organization (WHO) with the definition of “disability” as a result of interactions between people and their environment and not as a medical or biological malfunction (“ disease ”) is there Cause for critical consideration of a paternalistic view; it is more comprehensive than the German concept of disability in SGB ​​IX [ Social Code IX ].

In the general election in 2013 were handicapped unfairly and mentally ill people who were under supervision, excluded the verdict Constitutional Court in February of 2019.

See also

literature

Practical paperbacks:

  • Walter Zimmermann: Care law - help for those who are cared for and carers. 9th edition. dtv, Munich 2010, ISBN 978-3-423-05604-5 .
  • Zimmermann: Betreuungsrecht from A-Z . 4th edition. Beck im dtv, Munich 2011, ISBN 978-3-406-60112-5 .

Introductions:

  • Ließfeld: Supervision law in practice. History, basics and planning of legal support. Springer VS, Wiesbaden 2012, ISBN 978-3-531-19388-5 .
  • Horst Böhm / Lerch: Handbook for supervisors. Working aid for volunteer supervisors. Walhalla-Fachverlag, Regensburg 1999, ISBN 3-8029-8403-X .
  • Kierig / Kretz: Form book care law . 2nd Edition. with addendum July 1, 2005, Munich 2004, ISBN 3-406-51868-0 .
  • Meier / Deinert: Handbook of care law. 2nd Edition. Heidelberg 2016, ISBN 978-3-8114-5202-2 .
  • Jürgens, Lesting, Marschner, Winterstein: compact care law. 8th edition. Verlag CH Beck, 2016, ISBN 978-3-406-61835-2 .
  • Pardey: Care and Placement Law in Practice. ISBN 3-8329-1368-8 .
  • Raack / Thar: Guide to care law. 5th edition. Cologne 2005, ISBN 3-89817-402-6 .

Comments:

  • Bauer / Klie / Lütgens (Ed.): Heidelberg Commentary on Care and Accommodation Law - HK-BUR. (Loseblattwerk), Heidelberg 1994 ff, ISBN 978-3-8114-2270-4 .
  • Damrau / Zimmermann: Guardianship law, commentary on formal and substantive law . Comment. 4th edition. Verlag W. Kohlhammer, Stuttgart 2011, ISBN 978-3-17-021392-0 .
  • Andreas Jurgeleit: Guardianship law. Hand comment. 2nd Edition. Nomos-Verlag, Baden-Baden 2010, ISBN 978-3-8329-3975-5 .

Essays:

  • Georg Dodegge: The development of care law until the beginning of June 2013. (Previous article: … until the beginning of June 2012 , NJW 40/2012, 2932), NJW 36/2013, 2639 (Note: This is an ongoing one that has existed for several years Series of essays in the NJW. The newest essay always refers to its predecessor.)

Series of publications:

Web links

Individual evidence

  1. ↑ Federal Association of Independent Vocational Careers eV: Significant decrease in supervision procedures, slight decrease in supervisor appointments ( Memento from March 5, 2017 in the Internet Archive )
  2. ↑ betreuer-weiterbildung.de
  3. ↑ bundesanzeiger-verlag.de: Support figures / support statistics 2012–2013 (pdf)
  4. ^ BdB eV Information on care ( Memento from April 9, 2012 in the Internet Archive )
  5. ↑ United Nations Human Rights Council: Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General. Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development Mental health and. Advance edited version of July 24, 2018; Article 46
  6. ↑ Betreuungsverein Lüneburg eV: What is statutory care?
  7. ^ Walter Zimmermann: Advice on care law. Beck legal advisor in dtv, pp. 1–10.
  8. ↑ BayObLG FamRZ 1994, 1618.
  9. ↑ BayObLG FamRZ 2001, 1403; AG Neuruppin FamRZ 2005, 2097.
  10. ^ Federal Ministry of Justice and Consumer Protection. Care law. With detailed information on the health care proxy. September 2019, page 9
  11. ↑ I started thinking when I appeared as a speaker in front of a group of clerks from the integration assistance in Lower Saxony in May 2005 and realized that legal support is subordinate to social assistance law in relation to integration assistance. This was acknowledged with incredulous astonishment and with the announcement that the opposite has always been assumed so far. Because social assistance is "always subordinate". Obviously, this is not an individual opinion. The heads of integration assistance in the city of Freiburg, the surrounding district of Breisgau-Hochschwarzwald and the neighboring district of Emmendingen vehemently argue that integration assistance can only be granted if the problem cannot be solved by appointing a legal advisor . Roland Rosenow. The functionalization of legal support by the welfare state . BtPrax 5/2007 pages 195 to 200
  12. ↑ BGH, decision of January 14, 2015, XII ZB 352/14
  13. ↑ Federal Ministry of Justice and Consumer Protection , Care Law (PDF; 1MB)
  14. ↑ Uwe Diederichsen in: Palandt, Bürgerliches Gesetzbuch, Beck'scher short commentary, 70th edition. CH Beck, Munich 2011, Rdzf 13 for the introduction before § 1896 BGB
  15. ↑ BGH XII ZB 69/00
  16. ↑ BGH XII ZB 236/05
  17. ↑ a b (Bt-Drs. 17/11513) entered into force on February 26, 2013 1906 (dejure.org)
  18. ↑ [@ attr_id =% 27bgbl108s2586.pdf% 27 #__ bgbl __% 2F% 2F *% 5B% 40attr_id% 3D% 27bgbl108s2586.pdf% 27% 5D__1588336394529 Art. 1 Law on the reform of the procedure in family matters and in matters of voluntary jurisdiction v . December 17, 2008]
  19. ↑ BGH, decision of March 17, 2003 , Az. XII ZB 2/03, full text
  20. ↑ a b BGH, decision of October 11, 2000 , Az.XII ZB 69/00, full text.
  21. ↑ BayObLG FamRZ 1991, 481.
  22. ↑ Böhm et al. a .: Handbook for supervisors. 8th revised edition. Walhalla Fachverlag, 2012, p. 66.
  23. ^ Judgment XII ZR 77/06. Federal Court of Justice, July 22, 2009, accessed on January 28, 2019 .
  24. ↑ Böhm et al. a .: Handbook for supervisors. 8th revised edition. Walhalla Fachverlag, 2012, p. 66ff.
  25. ↑ a b BGH, decision XII ZB 236/05 .
  26. ↑ BGH NJW 1972, 335; OLG Hamm FGPrax 1997, 64.
  27. ↑ BVerfG 2 BvR 1451/01
  28. ↑ § 1906 BGB
  29. ↑ Federal Law Gazette 2017 Part I No. 48, issued on July 21, 2017, p. 2426: Act to change the material admissibility requirements for medical coercive measures and to strengthen the self-determination of those in care ; Plenary minutes 17/217, p. 154 (D) (PDF; 2.6 MB).
  30. ↑ Changes to § 1906 BGB BT-Drucksache 17/12086 (PDF; 255 kB)
  31. ↑ (BVerfG 2 BvR 1549/14 - 2 BvR 1550/14, Rn. 30; BVerfG - 1 BvL 8/15, Rn 4, 80, 82, 83, 86; BVerfG 2 BvR 882/09)
  32. ↑ United Nations Human Rights Council: Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez; A / HRC / 22/53, paragraph 35 and 65.f.
  33. ^ Corinna Massow, Bachelor thesis, HAWK University for Applied Science and Art, University of Applied Sciences Hildesheim / Holzminden / Göttingen, Faculty of Social Work and Health ; Bachelor's degree in Social Work , 2012, bidok.uibk.ac.at: From proxy to assisted self-determination. UN disability rights convention as a challenge for legal support in Germany. (5. Need for action for legal support )
  34. ↑ Committee on the Rights of Persons with Disabilities: Concluding observations on the initial report of Germany , p. 5. Published on May 13, 2015, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx? symbolno = CRPD% 2fC% 2fDEU% 2fCO% 2f1 & Lang = en
  35. ↑ German Institute for Medical Documentation and Information , dimdi.de: ICF - International Classification of Functioning, Disability and Health ( Memento from March 29, 2015 in the Internet Archive ) (“October 2005”, p. 4/5, last accessed: 29 November 2015)
  36. ↑ behinderte.de: New definition of disability at the World Health Organization (WHO) (last accessed: November 29, 2015)
  37. ↑ n-tv.de: Judges in Karlsruhe decide, exclusion of supervisors from elections unconstitutional , accessed on 23 Feb. 2019.