Reservation of consent

Arranged reservations of consent in the Federal Republic of Germany

The reservation of consent in Germany is a special arrangement of a support judgment , in addition to a supervisor order can be carried out and the capacity limits of the person concerned. In terms of the requirements and legal consequences, it is similar to previous incapacitation due to waste. The reservation of consent has nothing to do with the ability to give consent under criminal law, e.g. B. with curative treatments to do.

Preliminary remarks

The appointment of a supervisor does not affect the legal capacity

The appointment of a supervisor does not interfere with an existing capacity . Before 1992 it was different. If you were incapacitated at the time because of mental illness , you were considered incapable of doing business. Persons incapacitated for other reasons (mental weakness, drunkenness, drug addiction and waste) were considered to have limited legal capacity.

Reservation of consent can also be ordered

In order to avoid disruptions in the management of care by competing actions of the person being cared for, with whom they cause harm to themselves, there is the possibility for the care court to order a reservation of consent. Around 5% of all those cared for are subject to a reservation of consent. Reservations of consent were ordered 10,843 times in 2004 (2003: 9,810; increase by 10.53%), (source: Federal Ministry of Justice; special survey: procedure under the Care Act)

Requirements for the reservation of consent

The requirements of this reservation of consent are regulated in § 1903 BGB . According to this, it is a prerequisite that without such a person there must be a significant risk to the person or property of the person under care. The arrangement of a reservation of consent presupposes that the person being cared for is unable to freely determine his or her will due to a mental illness . Typical situations are e.g. B. People with delusional diseases , especially in manic phases, in which they completely overestimate themselves and especially their financial possibilities. Among other things, pathological gambling can be a reason for ordering a reservation of consent.

In practice, it is usually a question of the person being cared for making expenses that are objectively unnecessary and that exceed their financial resources. Often this involves ordering unnecessary items by mail order , concluding door-to-door sales , high telephone costs through senseless phone calls and the like, as well as high alcohol and other drug consumption.

From case law

BayObLG, decision of February 4, 1997 - 3 Z BR 8/97 FamRZ 1997, 90 "Appointment of a supervisor to prevent (further) indebtedness of the person concerned 1. The appointment of a supervisor for the task of asset management may also be necessary in order to (further) To prevent a person concerned from becoming indebted, even if they are without assets. 2. In such a case, it is usually also necessary to order a reservation of consent. "

The reservation of consent must relate to supervisor tasks

For the reservation of consent, it must be determined for which of the tasks of the supervisor this is arranged. Usually it is the property management task group, but other tasks are also conceivable, e.g. B. Housing Matters.

Arrangement of the reservation of consent

Simultaneously with the appointment of a supervisor

In part, is already in the care process through the service judge himself recognized that the support arrangement will not be enough alone to eliminate the danger to the assisted. Then a reservation of consent can be arranged at the same time as the appointment of the supervisor.

Later arrangement

In some cases it only becomes clear in the context of the supervisory activity that the person being supervised remains at risk without a reservation of consent. In such cases, the supervisor can apply to the supervisory court to order a reservation of consent ( Section 1901 (5) BGB). In such cases, a new judicial process is necessary. Hearings have to take place again, a new expert report is required if more than 6 months have passed since the last assessment ( Section 293 FamFG).

Since the order of a reservation of consent by the supervision court requires the obtaining of an expert opinion and therefore only takes effect after some time, in urgent cases the possibility of first applying for the establishment of a provisional reservation of consent as part of an interim order is the appropriate measure ( Section 300 FamFG). But even a provisional reservation of consent only has an effect in the future ( Section 287 (1) FamFG). Legal transactions that the person under supervision had concluded in the past and that led to corresponding debts are no longer affected. The only possibility of influencing such transactions is given if the person being looked after was already incapable of doing business according to Section 104 No. 2 BGB. This is often difficult to prove .

Reservation of consent under transitional law

According to the transitional provisions of the Care Act, on January 1, 1992, all previous guardianships became care providers with the task of “all matters” including the reservation of consent for “all matters” (with the exception of consent to sterilization ). In the meantime, the guardianship courts had to review the further necessity in all of these cases (Article 9, Section 1, Paragraph 3 of the BtG). Earlier infirmities (§ 1910 BGB old version) became care without reservation of consent.

Consequences of the reservation of consent

Declarations of intent are to be approved by the supervisor

The reservation of consent means that the person being cared for Legal validity of a declaration of intent , which is the responsibility of the supervisor circuit requires his consent. This corresponds to the limited capacity , which is actually for minors applies 7-18 years ( § 108 -113 BGB), to which the § 1903 points BGB. The consent can be given before the declaration by the person being cared for or (with exceptions) given afterwards. However, here too the supervisor in the internal relationship (i.e. vis-à-vis the supervised person) is again bound to his or her well-being and wishes ( Section 1901 Paragraphs 2 and 3 BGB). Failure to comply can therefore result in claims for damages in accordance with § 1833 BGB trigger.

Pending ineffectiveness

In practice, the reservation of consent can lead to considerable restrictions of the person being supervised in legal transactions, because contracts concluded without the consent of the person being supervised are pending ineffective , their effectiveness depends on the subsequent approval of the supervisor ( Section 108 (1) BGB, Section 1829 BGB).

If the contractual partner of the person in care requests the supervisor to approve the contract, this can be done up to four weeks after receipt of the request ( Section 1829 Paragraph 2 BGB in conjunction with Section 1908i Paragraph 1 BGB). If this does not happen, the contract is deemed not to have been approved and therefore void from the start (Section 108 (2) BGB).

As an example, it should be mentioned that sales contracts that become null and void in this way must be processed within the framework of the provisions on unjust enrichment (§ § 812 ff. BGB). As a rule, both the goods and the amount of money are to be reimbursed to the other person. Here, however, it is possible that the person being cared for is depleted in the meantime, e.g. B. as a result of the loss of the purchased goods ( Section 818 (3) BGB). In such cases, the goods must no longer be returned, but the purchase price must be reimbursed (consequence of the so-called abstraction principle ).

Unilateral declarations of intent only with prior consent

Unilateral legal transactions by the person under supervision (e.g. termination of contracts) are also ineffective ( Section 111 BGB). The consent of the supervisor must have been given beforehand ( Section 1831 BGB).

Deadlines only run when the supervisor is informed

Declarations of intent made by third parties to the supervised person are not effective before the supervisor has received them ( § 131 BGB).

Documents cannot be effectively served

The restrictions also apply to government proceedings as well as legal proceedings . Official and judicial documents are also only considered served if the supervisor has received them ( Section 12 VwVfG , Section 6 VwZG , Section 53 ZPO ). These measures serve to protect the person being cared for. In this way, caregivers are supposed to protect those being cared for more effectively from being overreached.

Reservation of consent in the event of legal incapacity

From its legal structure of the reservation of consent in is incompetent ( § 104 2 no. BGB) is not necessary. Sometimes this becomes clear in supervisor resolutions when supervisory judges determine that a reservation of consent was not to be ordered due to the obvious legal incapacity (e.g. for every recognizable severe intellectual disability ). Nevertheless, there is sometimes a reservation of consent even with people who are incapable of doing business if the incapacity is not generally recognizable in legal transactions , i.e. in particular to make it easier for the supervisor to prove the ineffectiveness of legal transactions.

Effective legal transactions without the involvement of a supervisor

Some legal transactions of the supervised person, which move within the supervisor's area of responsibility, in which the reservation of consent exists, are also effective without the supervisor's consent.

Only legally advantageous legal transactions

Inpatient, despite a consent of title effective legal conduct business, the only legally bring him an advantage, so mainly as a donee donations answer (§ § 516 et seq. BGB). What matters here is the so-called legal advantage, not the fact that a legal transaction is economically particularly advantageous (so-called "bargain").

Neutral legal transactions

Neutral legal transactions are also legally effective without the consent of the supervisor. In practice, these are unpaid orders (§ § 662 ff. BGB) that the supervised person can accept as well as errands of all kinds. The supervised person is neutral because his cash expenses are to be reimbursed ( § 670 BGB).

Minor everyday business

In addition, despite the reservation of consent for minor business of daily life, the person being looked after is considered capable of acting ( Section 1903 (3) BGB). As a rule, these are cash purchases for groceries and similar consumer goods.

The provision is largely in line with Section 105a of the German Civil Code ( BGB), which was introduced on August 1, 2002 , according to which incapacitated smaller everyday transactions can also be carried out legally. In no case do installment transactions (installment purchases, etc.) fall under this exception.

The guardianship court can order in individual cases that these day-to-day business may not be carried out by the guardian ( Section 1903 (3) BGB). This should represent an absolutely exceptional case and will practically never be checked.

Funds at your disposal

The supervised person can also legally dispose of money that the supervisor has given him for free disposal or for specific purposes ( § 110 BGB). This is the pocket money provision of the BGB. However, it can be quite large sums of money that the carer hands over to the person being cared for.

As a rule, the carer should have made sure that the person being cared for is able to allocate the amounts of money for the period for which they are intended. As the supervisor over the guardianship court statement set must ( § 1840 BGB), he should be assisted by the receipt of money Acknowledge leave.

However, if the person being cared for should be able to dispose of larger amounts of money independently, it is advisable, in the interests of the greatest possible autonomy , that in such a situation the carer applies to the custodial court to revoke the reservation of consent ( Section 1901 (5) BGB) and that the custodial court cancels it ( § 1908d Abs. 4 BGB).

No reservation of consent may be made

For marriages and civil partnerships

In the time before the custody law came into force, incapacitated people were not entitled to marry if they were incapacitated due to mental illness. This was called immaturity. The other reasons for incapacitation (mental weakness, drinking and drug addiction as well as waste) led to so-called limited marriage, i.e. H. marriage was only possible with the consent of the guardian .

1992 was supposed to end this restriction of personal freedom of development. The care law also changed the marriage law ; From this point in time, the focus was only on the legal capacity; specifically referred to this question since then unofficially as marital legal capacity . Reservations of consent were expressly prohibited from referring to the marriage .

For marriage (and since August 1, 2001 also for entering into a registered same-sex partnership ), no reservation of consent is expressly permitted on the basis of Section 1903, Paragraph 2 of the BGB; therefore, carers can in principle enter into this life union without the consent of the carer . However, according to Section 1304 of the German Civil Code, the person concerned is still required to have legal capacity. The legal capacity is to be checked on the occasion of the marriage or the establishment of the civil partnership by the registrar . In cases of doubt, a court decision may be required (Section 45 of the Civil Status Act).

For dispositions of death

Section 1903 (2) of the German Civil Code (BGB) also excludes the reservation of consent for dispositions due to death. This concerns wills and inheritance contracts , as far as the person being cared for is the testator. Again, capacity required, here testamentary capacity is called ( § 2229 para. 4 BGB). As far as a will notarized certified to be (or a contract of inheritance , in which this form is always necessary), has the notarising notary to verify the legal capacity ( § 17 Beurkundungsgesetz)

For declarations according to the 4th and 5th book of the BGB

No reservation of consent is permitted for certain family and inheritance law declarations. This concerns declarations regarding community of property (§ § 1511 - 1516 BGB), paternity contestations ( § 1600a BGB), adoption consents ( § 1750 , § 1760 , § 1762 BGB), declarations in the context of inheritance contracts ( § 2282 , § 2290 , § 2292 BGB) and inheritance waivers ( § 2347 BGB).

With real files

For real files , e.g. B. Determining one's own place of residence is, according to the general opinion, no reservation of consent, as this only relates to legal transactions . The Hildesheim Regional Court ruled on this in the order of May 29, 1996 - 5 T 279/96, BtPrax 1996, 230:

"1. The arrangement of a reservation of consent in accordance with Section 1903 (1) BGB, according to which the person being cared for to make a declaration of intent that relates to the group of tasks of the carer, whose consent is required, affects the person being cared for in legal transactions and wants to protect him from making declarations of intent by himself or put his property in serious danger.

2. A reservation of consent for the task area determination of residence can only affect the sub-areas in which legal declarations are to be made. Otherwise, in cases in which the supervised person does not comply with the supervisor's residence regulations, a stronger decision-making power of the supervisor cannot be enforced via Section 1903 BGB. "

With consents under criminal law

Consents relevant to criminal law, e.g. B. in medical treatment and deprivation of liberty (§§ 1904-1906 BGB, in criminal law §§ 228, 239 StGB) are also not to be proven with a reservation of consent. Here it depends exclusively on your own insight and control ability .

With highly personal explanations

Certain highly personal actions are not accessible to a legal representative from the outset, so a reservation of consent is not possible here. One example is exercising the right to vote in all kinds of elections.

The exercise of parental responsibility for children of the person being cared for is also not covered by the carer's power of representation. Possibly. a guardian must be appointed for the child if the parent under care is incapable of doing business.

Removal of reservations of consent

The reservation of consent is lifted, on the one hand, even without an express resolution to withdraw, if the supervision is lifted altogether or if the group of tasks for which the reservation of consent was arranged is lifted ( Section 1908d Paragraph 1 BGB). The reservation of consent can, however, also be lifted separately if it has become superfluous, but not the supervision as such ( Section 1908d Paragraph 3 BGB).

According to Section 1901 (5) of the German Civil Code, every supervisor is obliged to apply to the supervisory court for such a waiver as soon as the reservation of consent is no longer necessary for the supervisory activity . As part of the general review of the supervision order in accordance with Section 294, Paragraph 3 of the FamFG, the further necessity of the reservation of consent must also be reviewed after 7 years at the latest.

Appeal

The complaint takes place in accordance with Section 303 (4) FamFG in the event of an order, extension, restriction, rejection or revocation of reservations of consent. This legal remedy must be lodged with the supervisory court or the regional court within one month of the delivery of the decision ( Section 63 FamFG).

Legal situation in Austria

The Austrian guardianship law did not have a separate decision on legal capacity , unlike the German guardianship law. The arrangement of a guardianship always affected the capacity of the person concerned, according to the latest law, the possibility of a binding living will create. The Adult Protection Act has been in force in Austria since 2018, which no longer automatically restricts legal capacity and those affected always remain legally competent.

The complete withdrawal of legal capacity is no longer possible, but it can be restricted by a court approval reservation if the person concerned is at considerable risk.

Legal situation in Switzerland

Currently, Swiss law still recognizes incapacitation , which always leads to a limitation of legal capacity . In an intended legal reform, a multi-stage procedure for protective measures in favor of adults is intended, the effects of which are similar to care or the reservation of consent.

literature

Cypionka, Bertram: Elimination of the incapacitation of adults - effects on legal transactions. In: NJW 1992, 207
Jurgeleit, Andreas: The legally incapable supervised subject with reservation of consent. In: Rpfleger. 1995, 282

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