Supervision order

from Wikipedia, the free encyclopedia

The care decree is a possibility of personal and self-determined provision in the event that someone is no longer able to take care of his own affairs. Their advantage is that they only have an effect when it is actually necessary ( Section 1896 BGB ).

Instructions to the guardianship court

The guardianship court has in choosing a caregiver sales made in Betreuungsverfügung proposals under the § 1897 to consider para. 4 BGB. For this purpose, it is necessary that the court becomes aware of the care order in the event of a need for care. To this end, in Section 1901c of the German Civil Code (BGB) there is an obligation for everyone to submit such a ruling to the supervision court when they become aware of legal supervision proceedings . In some federal states , it is also possible to deposit a care decree with the court beforehand (currently in Bavaria , Hesse , Saxony , Saxony-Anhalt and Thuringia ). As part of the registration of power of attorney within the framework of the central pension register of the Federal Chamber of Notaries , information on the care decree can also be stored there.

Difference to health care proxy

With other preventive measures ( power of attorney , living will ) one has to rely on the trust of the authorized representative or the doctors , because in case of doubt the person concerned is no longer able to control his own guidelines. In addition, with these precautionary options it cannot be ensured that the power of attorney for a third party only becomes effective if it is necessary. On the other hand, it already applies immediately in the event that the incapacity to act occurs and does not have to be confirmed by a court. The care order only takes effect if the court considers it necessary, in accordance with the health situation of the person making the decision, that the authority to act is transferred to the person proposed by the person making the decision and that authority is then under judicial control. The nominee is then appointed by the court as a supervisor. This means that the supervisory court monitors compliance with the order and z. B. on every entry and exit on the accounts of the disposer. Unlike a Vorsorgevollmacht it is not necessary for a service available to that in their writing capacity ( § 104 is given BGB). The wishes expressed in the supervision order are to be observed by the court in principle even if they were expressed by a person incapable of doing business.

Necessity

A case can arise for anyone at any time that makes a care directive sensible. After an accident , a (brain) infarction , dementia , mental illness, etc., the situation can quickly arise where the person concerned is no longer able to act himself and someone else has to act for him.

The local jurisdiction for the person concerned District Court as guardianship court in this case is necessary, a supervisor order. You can influence this procedure in advance.

Content of a supervision order

You can determine by means of the supervision decree

  • who should be appointed as a supervisor and who should not ( § 1897 Paragraph 4 BGB),
  • where the residence of the person being cared for is to be ( Section 1901 (3) BGB)
  • which is also part of a content living will could be
  • to a limited extent also dealing with finances , gifts to children, etc. Here the supervisor is legally restricted by restrictive measures of asset management ( § 1804 , §§ 1806 ff. BGB).

Not everyone wants to be cared for in old age in a retirement home , where they are well looked after in terms of medical and nursing care, but prefer to stay in their own apartment , where they may have to accept losses in medical care and nursing . What is understood by many to be quality of life can be associated with a greater or lesser risk . For people with whom it is no longer possible to communicate about these questions, the care decree applies.

The care decree is primarily not based on trust. Rather, their content will be used by the court for control in due course . The court monitors z. B. Payment transactions on the account of the person concerned and also controls compliance with the requirements of the supervision order.

Form of the supervision order

This should be handwritten if possible after considering your own wishes, possibilities and ideas, be they cultural, scientific or religious in nature. This is of course not required by law.

It is also sensible to update the supervision order regularly in order to adapt it to changes in your own personal ideas. A regular, approximately once a year supplement to the supervision order with the sentence "I want to adhere to the above order" as well as the date and signature make it easier for the court to assess whether the supervision order reflects the current wishes of the person concerned.

Any draft of a power of attorney can be used as a template to draft a care directive . This should be renamed to Supervision Decree.

Experts advise against pre-formulated forms that only have to be ticked and / or signed. They believe it is necessary to think carefully, to seek comprehensive advice and information, and to formulate them in order to effectively lay down one's own will .

Advice and certification

Obtaining advice and clarification from third parties, such as notaries or lawyers , can be recommended. Supervision associations are also obliged to provide advice on drafting health care proxy and supervision decrees. Often, hospital and nursing home social services also advise on care decrees. Since July 1, 2005, signatures on these documents can also be certified by the local supervisory authority .

Revocation, termination and dismissal of the supervisor

Like a power of attorney, a care decree can be revoked or changed at any time without having to comply with a specific form. According to § 1908d BGB, however, it is not possible to revoke the supervision if the supervision is necessary “ex officio”. If the care case has already occurred, the care decree can be revoked despite legal incapacity - then the care court will determine another carer. According to § 1908b BGB, the supervision court can also dismiss the supervisor if there are doubts about his or her suitability, if there is “another important reason for the discharge” or if the supervised person can find another suitable person who is willing to take care of them.

See also

literature

Individual evidence

  1. ↑ Can the power of attorney be deposited with the court or have it kept? In: Kester Haeusler Research Institute for Care Law. Kester Haeusler Foundation, accessed on May 26, 2019 .

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