Incapacitation (Germany)
The incapacitation was in Germany until 1992 a judicial process that the loss of capacity led a guardian of the person concerned and to order.
Incapacitation was abolished with the Care Act and replaced by legal care .
requirements
According to § 6 BGB a. F. the reasons for incapacitation were mental illness, mental weakness, wastefulness, drinking and drug addiction. These are legal terms that are still used today in criminal law to determine whether a person is incapable of guilt .
Incapacitation due to mental illness led according to § 104 Abs. 3 BGB a. F. to complete legal incapacity and thus also to incapacity to testify and incapacity to marry. An incapacitation for other reasons led according to § 114 BGB a. F. on limited legal capacity, as it also applies to minors up to the age of 18. In any case, incapacitation led to a voting ban and was recorded in the federal central register.
According to § 115 BGB a. F. led a successful challenge of incapacitation to the retroactive restoration of legal capacity; However, this had no influence on the legal transactions concluded by the guardian in the meantime.
Judicial process
The judicial procedure for incapacitation took place in a procedure of the disputed jurisdiction before the district court and was in §§ 645-687 ZPO a. F. regulated.
The incapacitation took place on application by resolution ; the district court at the place of residence of the person to be incapacitated was responsible. Eligible to apply were the spouse, otherwise the parents of a minor child, otherwise any relative. The public prosecutor had his own right of application and was involved in the entire procedure.
The application had to be accompanied by a medical report showing the health of the person concerned. This then formed the basis for further investigations by the court. The incapacitation set out at least one expert report, about which the person concerned should usually be questioned personally. For this purpose, the person concerned could be forcibly admitted for up to six weeks.
If the court accepted the application, the youth welfare office was informed in order to appoint a guardian for the now incapacitated person. In the case of incapacitation due to mental illness, the decision was not made known to the person concerned , but only to the applicant and the public prosecutor. The resolution became effective immediately upon notification. The costs of the proceedings had to be borne by the person concerned, if the application was successful, otherwise the state treasury bore the costs. If incapacitation was refused, the applicant and the public prosecutor had the right to appeal immediately .
If the incapacitation was granted, the person concerned or another person entitled to file a complaint against this decision could file an action against this decision within one month before the competent regional court. A lawyer was appointed to represent him on request. If the action was successful, the decision was to be overturned. In principle, the costs of the proceedings were borne by the loser; if the public prosecutor opened the lawsuit, the state treasury would in any case bear the costs of the proceedings.
The incapacitated person, his guardian or the public prosecutor could apply to the competent local court for the incapacitation to be lifted at any time. The incapacitated person bore the procedural costs in any case, even if he was successful. The public prosecutor was able to lodge an immediate complaint against the successful lifting of the incapacitation. If, on the other hand, the application was rejected, an action against this could be filed with the regional court as above.
If incapacitation due to wastefulness, alcoholism and drug addiction was applied for, the public prosecutor was not involved in this process. According to the law, the decision on such incapacitation was to be made public. However, this provision violated the human dignity of Art. 1 GG and was therefore incompatible with the Basic Law and null and void.
Appointment of a guardian
In principle, the youth welfare office was responsible for appointing a guardian for the now incapacitated person, and submitted a corresponding application to the Guardianship Court. The regulations on guardianship for children were largely applied to this guardianship, although there were some peculiarities due to the different situations of children and adults.
For example, a guardian for an adult could not be named in the parents' will. Instead, the spouse was appointed as guardian, otherwise the parents; the incapacitated person could not object to his parents' appointment as guardian. The parents were legally exempt guardians and they could only be appointed a counter- guardian on their own request.
Since an adult usually no longer needs education and care, personal care about the ward was limited to what was necessary for guardianship. For gifts from the ward's assets and for the conclusion of a lease for more than four years, the guardian required the approval of the Guardianship Court.
If the formal incapacitation procedure took too long, a provisional guardian could also be appointed for a person. In this case, the court could appoint any person as guardian. The provisional guardianship ended automatically when the application for incapacitation was granted or rejected, or when the person concerned no longer needed a provisional guardian.
criticism
There was great criticism both at the institute of incapacitation itself and at the practical enforcement by the guardians.
The complete loss of legal capacity of the incapacitated led to a severe interference with their fundamental rights. This also had the consequence that the incapacitated person did not have the opportunity to take action against the guardian's actions, as he was also incapable of legal proceedings due to the lack of legal capacity and thus could not take legal action against the guardian.
In the meantime, guardianship for adults was largely designed exclusively as asset management; the guardian had no obligations whatsoever to promote or improve the health of the ward in any way, which was also manifested by the legal regulations that limited the care of adult wardens. In order to avoid legal problems in the context of personal care, most guardians left their wards in a home or in a psychiatric ward for the rest of their lives.
The incapacitated person had no way of influencing the choice of guardian, so that conflicts of interest could arise if, for example, the home staff was appointed as guardian for a home resident. Criteria for the suitability of the guardian were completely absent, there was also no limit to the number of cases, so it was quite common for a guardian to administer 300 cases or, in individual cases, far more, in most cases without ever having met these people personally. The incapacitated person's wishes were by no means binding on the guardian - he could also ignore them completely.
The guardians did not receive any help or support in the exercise of their duties. The judges, too, were often not qualified in such matters; sometimes they incapacitated people simply based on the files, which was considered a scandal in jurisprudence. Since the negotiations on incapacitation were publicly accessible according to the principle, there was an additional stigmatization of the person concerned.
Most of these points of criticism were resolved with the introduction of legal support in 1992. Supervised persons are basically always capable of litigation in the supervision procedure, they have the greatest possible right to choose the supervisor and certain groups of people, e.g. B. home staff, may not be appointed as a supervisor. In addition, personal care was stipulated in law and rehabilitation was declared as the aim of care. The wishes of the person being looked after are to be followed as a matter of principle, provided they do not jeopardize their well-being.
See also
Individual evidence
- ↑ BVerfG, March 9, 1988, AZ 1 BvL 49/86
