Supervision procedure

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The decision of the supervision court on the supervision order according to the German supervision law is made in a supervision procedure . This is a voluntary jurisdiction process . So there are no plaintiffs and defendants , only those involved in the proceedings or the supervised as applicants when it comes to appointing a supervisor on their own application.

Jurisdiction in court

The supervisory court, a department of the local court, is responsible .

A special feature was in the Württemberg part of Baden-Württemberg until 2017 : the responsible notary took over the function of the supervisory court in accordance with the then § 37 of the Baden-Württemberg state law on voluntary jurisdiction .

Internationally responsible

International jurisdiction of the German jurisdiction ( § 104 FamFG) for:

  • German citizens , regardless of their place of residence
  • Foreigners habitually resident in Germany
  • Foreigners who are not habitually resident in Germany (e.g. travelers passing through) who require the care of the German court. § 24 (Paragraph 1 EGBGB )

Ordinary place of residence is the permanent focus of life (see Section 30 (3) SGB ​​I )

Local responsibility

is the district court in the following order (in Baden-Württemberg until 2017 in the Württemberg jurisdiction the supervisory court at the notary's office) in its district

Functionally responsible

The Rechtspfleger is functionally responsible , provided there are no judges' reservations. Unless otherwise regulated by state law, the supervision judge is responsible for arranging supervision and selecting the supervisor. In Bavaria , due to a new state ordinance, the Rechtspfleger is responsible for the selection of supervisors after the death of the previous supervisor and for the appointment of supplementary supervisors according to Section 1899 (4) BGB .

Procedural principles

The prerequisite for the appointment of a supervisor is that the person concerned cannot take care of his affairs in whole or in part due to a mental illness or a physical, mental or emotional disability.

The procedure for determining the need for supervision and appointing a supervisor begins at the request of the person concerned, by a third party or ex officio . This means that anyone can give the supervisory court an indication that someone needs a supervisor. There are no longer any special application powers such as that of the public prosecutor in the previous guardianship law .

An adult can only be cared for against his or her own will after it has been established that the person concerned lacks the ability to form a free will and to recognize the importance of care for his or her life (§ 1896 1a BGB; BGH, January 14th 2015, XII ZB 352/14). This applies even if care appears objectively to be advantageous for the person concerned.

In practice, supervision procedures are often based on suggestions from the supervision authority , which according to Section 7 Supervision Authorities Act (BtBG) may pass on information to the court. The person concerned will be informed of the start of the procedure.

Procedural ability of the person concerned

The person being cared for is always able to take legal action in his / her own legal care matters ( Section 275 FamFG). This means that it is within the court file applications, access to the court record company ( § 13 FamFG), a legal counsel (eg. As a lawyer ) Order and remedies ( complaint may file). The appointment of a method caregiver ( § 276 FamFG) does not change this process ability.

If the supervisor files a complaint against the appointment of a supervisor , no deadline has to be observed. The district court is responsible . Can the person concerned in the proceedings on the arrangement of the service itself does not express is to continue to examine whether he is a guardian ad litem to be appointed, which under this curatorship has to exercise the rights of the person concerned.

Appointment of a guardian ad litem

The curator ad litem has the task of representing the interests of the person concerned in the proceedings and can submit applications, lodge appeals and participate in the hearings . He should explain to the person concerned how the judicial process works, explain the contents and notifications of the court. He should also convey the wishes of the person concerned to the court.

Section 276 of the FamFG particularly highlights three cases in which a curator ad litem has to be appointed:

  • if, as an exception, the person concerned is not to be heard personally ;
  • if the subject of the proceedings is the arrangement of supervision for all matters;
  • if a decision is to be made on the approval of the supervisor's consent to sterilization (contraception) ( Section 1905 BGB).

The appointment of guardian ad litem rose from 91,483 in 2003 to 92,073 in 2004 (an increase of 0.65%). 55,799 lawyers (60.6%) were appointed guardian ad litem.

Hearing the person concerned

The service judge must those concerned before taking a decision on the appointment of a supervisor - a few exceptions apart - Listen to personally get an immediate impression of him ( § 278 , § 279 FamFG). This is to ensure that the court is sufficiently informed about the personality of the person concerned. If a curator ad litem ( Section 276 FamFG) has been appointed, the hearing should be held in his presence. The court can also consult an expert at this stage of the procedure .

In accordance with § 278 , § 279 FamFG, the hearing can be omitted as an exception if there is a risk of considerable detriment to the health of the person concerned or if the person concerned is obviously unable to express his or her will.

Only in very urgent urgent cases can a supervisor be provisionally appointed without a hearing and, if necessary, a reservation of consent can be arranged, but then the hearing will be rescheduled immediately. According to the case law of the Federal Constitutional Court , a previous hearing may only be waived if the court is busy with other measures that deprive the person of their liberty , but appointments in family or civil matters must be postponed if necessary.

Demonstration for the hearing

If the person concerned refuses to take part in the hearing, the supervisory authority has to present him / her for a personal hearing ( Section 278 FamFG) and for an examination by the expert ( Section 278 FamFG) at the direction of the court .

The compulsory presentation of those affected for hearings and investigations represents a serious encroachment on the personal rights of those affected ( Art. 2 Basic Law ). Therefore, the principle of proportionality must be strictly observed here.

Hearing other people

At the request of the person concerned, a person they trust can attend the hearing. The court can allow other people to be present, but not against the will of the person concerned. Often these people are employees of the care authority or the possible caregiver so that the person concerned has the opportunity to get a first impression of them. Furthermore, the spouse , partner and close relatives should be given the opportunity to comment.

Social report from the care authority

The supervisory court can instruct the local supervisory authority to clarify the facts ( Section 8 BtBG). The care authority should then z. B. ask close relatives and make suggestions about the necessity of appointing a supervisor , possible tasks and the selection of a suitable supervisor. The supervisory authority should also be given the opportunity to comment if it serves to clarify the facts or if the person concerned requests it ( Section 279 FamFG). This activity is also known as social reporting.

Expert opinion

The supervisor order sets a given court-ordered appraisals of experts ahead of the need to care. A (self-submitted) medical certificate is only sufficient if the person concerned applies for the appointment of a supervisor himself. In urgent cases, a medical certificate is also sufficient, but the assessment must be made up for.

The expert opinion should make statements about the necessity of the supervision or the action to be approved (§ 280 FamfG). It should contain: facts, history , test results , assessment including a prognosis, summary. The expert must personally question or examine the person concerned before giving the report. If the expert comes to the conclusion in his report that there is a need for supervision, he also has to make statements in his report as to which tasks the supervision should encompass and for how long it should be designed.

The determination of a mental illness or mental or emotional disability of the person concerned as a prerequisite for care requires specific psychiatric details. The effects on the cognitive and voluntary abilities of the person concerned must be explained in detail. The general description of the condition as " stubborn old age " is not sufficient for this.

The qualification of the expert is not legally defined in the care procedure (unlike in the placement procedure ). Often it will be a medical expert , but other professional professions can also be called in as experts (e.g. psychologists , social workers , social pedagogues, curative pedagogues, etc.). The expert is paid according to the provisions of the Judicial Remuneration and Compensation Act ( JVEG ).

It follows from § 406 ZPO that the expert can be rejected if there are reasons that justify mistrust of the impartiality of the expert and justify the concern about the partiality of the expert ( § 42 ZPO). For example, unobjective statements in the preliminary report can give rise to concerns about bias. Within two weeks of receiving the evidence order of the Court should the person concerned or the guardian ad litem (which may be a lawyer, but z. B. also a knowledgeable friend / acquaintance) apply to the court that another appraiser is appointed. If the indications for the concern about bias arise from the report itself, the rejection can also be made within a reasonable period of time after receipt of the report ( Section 406 (2) sentence 2 ZPO). According to the prevailing opinion, the fact that the expert has already treated the person concerned at an earlier point in time, for example in the context of closed accommodation , does not necessarily preclude his appointment.

Long-term care insurance reports instead of judicial reports

Since July 1, 2005 it has been regulated that instead of a specially ordered expert opinion, the court can also refer to an opinion from the medical service ( MDK ) within the framework of long-term care insurance ( Section 282 (1a) FamFG). This is intended to speed up legal proceedings. The consent of the person concerned or his guardian ad litem is necessary for a corresponding evaluation of the report.

Demonstration and accommodation for assessment

In preparation for the expert opinion, the person concerned can be temporarily accommodated by decision of the court and deprived of liberty ( Section 283 FamfG). The performance must take place at the request of the court by the supervision authority. The accommodation must not exceed a period of six weeks. If this period is not sufficient to obtain the necessary information for the expert opinion, the placement can be extended up to a total of three months.

Interim measures

The procedure described above, which requires extensive investigative work by the court, takes time. Often, however, it is necessary to act quickly for the benefit of the person concerned. In a simplified procedure, the court can then appoint a provisional supervisor by means of an interim order, order a provisional reservation of consent , dismiss a supervisor or temporarily expand the scope of duties of an appointed supervisor ( Section 300 FamFG). A decision by way of a temporary injunction is only possible if there are urgent reasons for the fact that the requirements for the appointment of a supervisor or for the arrangement of a reservation of consent are present and there is a risk of delay. In these cases, a medical certificate must be available about the condition of the person concerned. The person concerned and the curator ad litem , if one has been appointed, must in principle have been heard personally.

The temporary order is to be limited in time

Such a temporary injunction may not exceed a period of 6 months. After hearing an expert, it can be extended through further interim measures. Urgent measures may not last longer than a maximum of 1 year (Section 302 FamFG). In particularly urgent cases, the supervisory court can take the necessary measures itself instead of a supervisor, as long as this has not yet been appointed or if he is unable to fulfill his obligations ( § 1846 BGB). Often in such particularly urgent situations the court decides on custodial detention .

Appointment decision

The appointment decision must state for whom a supervisor is appointed, the name of the supervisor (in the case of club and authority supervisors also the name of the supervisory association or the supervisory authority), the tasks of the supervisor, whether and, if so, for which task group a reservation of consent has been established, the date of the review of the appointment decision (after 7 years at the latest) as well as instructions on legal remedies (§§ 39, 286 FamFG). It must be noted separately if the supervisor is to have the right to restrict the person's post or telephone traffic ( Section 1896 (4) BGB). If the supervision is carried out professionally, this must also be noted (Section 1836 (1) sentence 2 BGB). The decision is notified to the assisted, his method caregiver , the caregiver and the supervision authority (§§ 41, 287, 288 FamFG). Possibly. other authorities (e.g. election office, registration office) must also be notified (§§ 308–311 FamFG) as well as the home in which the person concerned lives.

Changes to the supervisor's resolutions

After the decision on the appointment of a supervisor , further supervision procedures may be necessary, e.g. B. to expand or restrict tasks, order or cancel reservations of consent or cancel all supervision, change of supervisor. In principle, the same procedural rules must be observed here as for the first order. Procedural acts can be waived in certain circumstances, e.g. B. if changes in the task areas represent only insignificant extensions or take place within 6 months (cf. § 293 FamFG).

Supervision court approvals

During the supervision, the supervisor needs judicial approval for numerous legal acts. Here too, hearings and expert reports are often necessary (e.g. in the area of ​​personal care for medical treatment according to Section 1904 BGB, for sterilization according to Section 1905 BGB, for accommodation according to Section 1906 BGB, for resignations according to Section 1907 BGB). There are also approval requirements for numerous decisions in the area of ​​asset management (§ § 1809 - 1831 BGB, § 299 FamFG).

Appeal against court decision

As appeal the complaint to be lodged within 1 month or two weeks (cf. §§ 58 ff 303-304 FamFG.) Must: be considered. Which legal remedy comes into consideration in the individual case results from the legal remedy instructions of the court. The regional court decides on the complaint . A legal complaint or to the BGH is possible under certain conditions against its decision (Section 70 FamFG). In addition to the person concerned and his curator ad litem, other persons and authorities also have a right of appeal, e.g. B. the supervisory authority .

See also

literature

Web links

Individual evidence

  1. ^ VO of March 15, 2006, Bayr. GVBl. P. 170.
  2. ↑ Federal Ministry of Justice , special survey: Procedure under the Care Act .
  3. ↑ BayObLG, decision of August 24, 2001 , Az. 3Z BR 246/01, full text = BtPrax 2002, p. 37.
  4. ^ LG Kassel, decision of November 28, 1996, Az. 10 T 154/96, FamRZ 1997, 889.
  5. ↑ cf. OLG Düsseldorf, FamRZ 1995, 11; OLG Hamm, decision of December 7, 2004, Az. 15 W 398/04.