Incapacitation
In the incapacitation is or acted it is a court order, after which the person concerned his legal capacity loses and a legal representative receives. This is also called guardian , but the person concerned was his ward and was patronized .
In Austria , the incapacitation is in 1984 by the Sachwalterschaft been replaced and regulated in 2018 by the representation in adult protection law in Germany before 1 January 1992 by the reservation of consent , which in the context of care proceedings can be arranged. In 2013, incapacitation in Switzerland was covered by comprehensive assistance . Since 2013 there is a disenfranchisement in German-speaking only in Italian South Tyrol and in the German-speaking Community of Belgium .
historical development
- Antiquity - Roman Twelve Tables Law contains basic features of guardianship and guardianship ( cura furiosi, cura prodigi )
- Middle Ages - "Munt" of the clan, later of the next paternal ancestor; At the end of the Middle Ages, guardianship became the responsibility of the sovereign
- 1794 - Prussian general land law provides for guardianship and judicial proceedings
- 1803 - Code civil regulates incapacitation procedures as a prerequisite for guardianship ( valid until 1899 in the Rhineland )
- 1875 - Prussian guardianship system introduces a distinction between guardianship and guardianship
Legal position
Germany
In Germany today there is only a guardianship for minors. Until 1992, however, there was still a disenfranchisement with subsequent adult guardianship. Most of these regulations originated from the Code of Civil Procedure in its original version from 1877 and were essentially unchanged until the end.
In addition, there was also the infirmity care , which was far less time-consuming to apply for and led to the appointment of a nurse. The incapacitation figures have been falling for years, but the total number of persons under guardianship and custody increased because the frailty custody had developed (regionally different) into a substitute form for guardianship.
The legal language with expressions such as: the “to be incapacitated”, the “ward”, the “foster care” was viewed as outdated, stigmatizing and no longer usable for contemporary legal use. It was later recognized that the incapacitation, guardianship and guardianship law, which originated in its structures and its essential content from the previous century, could no longer withstand an examination in the light of the Basic Law (right to human dignity ).
An expert commission of the German Bundestag , which published its report on the state of psychiatry in Germany in 1975 (Psychiatrie-Enquete, Bundestag-Drucksachen 7/4200 and 7/4201), made it clear that in addition to the reform of medical and psychosocial care, there was also a reform of the legal framework for the mentally handicapped and the mentally ill was necessary.
In November 1985 the SPD made a major inquiry on this subject.
The reform took place in 1990 through the Care Act ; this came into force on January 1, 1992.
Austria
The incapacitation was abolished in 1984 and replaced by general guardianship . This, in turn, was replaced by adult representation when the Adult Protection Act came into force on July 1, 2018 . It focuses on autonomy and self-determination for people with disabilities. The UN Disability Rights Convention influenced the creation of the new law.
Switzerland
The Swiss civil code had standardized incapacitation across the country since 1907. The law recognized weakness of mind and mental illness (Art. 369 ZGB), waste, drunkenness , vicious lifestyle or asset management as reasons for the need for protection under guardianship law , which exposes the person concerned or his family to the danger of an emergency or impoverishment (Art. 370 ZGB) ; in addition, prison sentences of over one year (Art. 371 ZGB) and old age (Art. 372 ZGB; only at the request of the person concerned). There were guardianship authorities, the precise design of which was left to the cantons.
In addition to the complete incapacitation, there was also the possibility of granting the person assistance who was responsible for part of their business without the person being regarded as underage for this reason (Art. 367 ZGB).
On January 1, 2013, a revised child and adult protection law came into force in Switzerland. After this, there is no longer any incapacitation, but only different levels of assistance .
Other states
In a number of other European and non-European countries, incapacitation has now been abolished or defused. Often other protective institutions have taken their place, the capacity or not nurmehr restrict certain points.
Thus, the incapacitation was about in Japan in 2000 by a German legal service replaces comparable Protection Institute.
In Italy , too , the law of 9 January 2004 established a protective measure similar to that in Germany ( Amministrazione di sostegno ), but incapacitation continues to exist under the term interdizione (Art. 414 Cc).
In Spain , the incapacitation (will incapacitación ) declared today in a classic procedure (contentious civil action process with subsequent judicial guardian order), and also in cases of demented or sick people who can not take care of more themselves and in Germany even before the reform is not more incapacitated, but would have been placed under the custody of frailty. If she does not appear as the applicant herself, the public prosecutor's office must be involved.
In the Netherlands , there has been a system of three institutes that exist side by side since 1982, namely the wealth management ( bewind ), in which the legal capacity remains formally unrestricted and is only limited voluntarily, the wealth maintenance ( curatele ), in which the legal capacity is severely restricted and in Property matters are practically eliminated, and care ( mentorschap ) designed as pure personal care , which can (but does not have to) be accompanied by restrictions on legal capacity , personal freedom of movement and parental care; on the other hand there is a guardian ( voogd ) only for minors.
In Belgium , various measures are provided for the legal protection of “persons with disabilities”, including the “extended minority” ( minoré prolongée / verlengde minderjarigheid ), the extension of parental custody for disabled children that was common in Austria and is still common today in Switzerland corresponds beyond the age of majority; the “provisional administration” ( administration provisoire / voorlopig bewind ) of the assets of the person concerned, which goes hand in hand with the appointment of an asset manager (called “provisional administrator”); the actual incapacitation ( interdiction / onbekwaamverklaring ), which is designed in the classic way and means the loss of legal capacity , and the assistance of a "judicial guardian" ( conseil judiciaire / Demokratieelijke raadsman ), whose area of responsibility also extends to personal matters can. The institute of adult guardianship ( tutelle des majeurs ) still exists as in France .
Others
- Ludwig II (Bavaria) (1845–1886) was incapacitated on June 9, 1886 by the government. He had financed his building frenzy (e.g. Neuschwanstein Castle ) with increasing national debts.
- George III (United Kingdom) (1738–1820) suffered from mental illness and was incapacitated in the early 19th century.
- After the death of her husband in 1786, Maria I of Portugal (1734-1816) increasingly fell into excessive piety and eventually went mad. In 1792 she was incapacitated.
- Peter Friedrich Wilhelm (1754–1823) was formally Duke of Oldenburg for a while; However, he was under the rule of his cousin Peter Friedrich Ludwig von Oldenburg for the entire time of his reign due to a mental illness . In 1815 he was incapacitated.
literature
- Thomas Geiser: Revision of care law in Switzerland . In: Betreuungsrechtliche Praxis (BtPrax), Volume 15, 2006, Issue 3, pp. 97-98, ISSN 0942-2390
- Till Guttenberger: The Hague Convention on the International Protection of Adults. Reform of the international care law . In: Betreuungsrechtliche Praxis , Volume 15, 2006, Issue 3, pp. 83-87, ISSN 0942-2390
- Ulrich Hellmann: Legal support and representation for people with intellectual disabilities in EU countries . In: Betreuungsrechtliche Praxis , Volume 15, 2006, Issue 3, pp. 87-90, ISSN 0942-2390
- Salvatore Patti: A new legal institution for the protection of the person in Italy. The care . In: Journal for the entire family law (FamRZ), Volume 53, 2006, Issue 14, pp. 987–989.
- Yoshikazu Sagami: The new childcare law for adults in Japan . In: Zeitschrift für Japanisches Recht / Journal of Japanese Law , Vol. 6 (2001), Issue 11, pp. 115-140, ISSN 1431-5726
Web links
- Incapacitation under Swiss law
- Swiss Civil Code - there from Art. 368 right of incapacity
- Hague Convention on the International Protection of Adults (PDF) (189 kB)
- Caring incapacitation . ( Memento from November 23, 2009 in the Internet Archive ) (729 kB) In: Brandeins, 01/2007
- Historical law: incapacitation and guardianship under the Prussian land law of 1794 (PDF)
- Overview of custody and guardianship law in numerous countries. ( Memento of July 5, 2008 in the Internet Archive ) (PDF; 109 kB; English / German)
- Incapacitation (Meyers Konversationslexikon 1905)
- Guide with questions / answers on the subject of incapacitation and legal care
