Prevention officer
A prevention advisor in Germany is a supervisor, in addition to an already ordered supervisors by the service court for certain situations ordered can be. The legal basis is § 1899 Paragraph 4 BGB .
A distinction must be made between two groups of cases:
- Legal hindrance of the supervisor
- Actual prevention of the supervisor
Legal hindrance of the supervisor
A prevention supervisor can be appointed if the supervisor cannot conclude a legal transaction with the supervised person in person (prohibited self-dealing , Section 181 BGB) or if the supervisor due to a legal transaction between the supervised and the spouse , life partner or relatives of the supervisor (straight Line) is prevented.
Furthermore, there are further obstacles to representation, which are mentioned in § 1795 Paragraph 1 No. 2 and 3. The supervisor may also be legally prevented if the person being cared for wants to prosecute him for breaches of duty ( § 1833 in conjunction with § 1908i BGB) or, in the opposite case, the carer has inheritance or compulsory portion claims or claims for damages according to § 823 or § 812 BGB wants to assert. In addition, in accordance with Section 1796 of the German Civil Code (BGB) , the court can withdraw the power of representation for individual matters, in particular because there is a risk of a conflict of interest.
The appointment of the prevention supervisor, who in this case is also referred to as a supplementary supervisor (to emphasize the proximity to the supplementary custodianship of § 1909 BGB), will usually focus on a small, more specifically specified group of tasks, e.g. B. the conclusion of a certain legal transaction or the conduct of a certain process. The tasks of the supplementary supervisor, and thus the scope of the remunerative activities, only extend as far as the actual supervisor is prevented from doing so.
The supplementary service does not end by operation of law with the completion of the transaction, in which the actual supervisor was prevented or with the restoration of legal capacity . Supplementary supervision is therefore expressly canceled in accordance with Section 1908d Paragraph 1 BGB (for the supervision procedure, see Section 294 Paragraph 1 FamFG ).
Actual prevention of the supervisor
However, the supervisor's prevention can also be based on factual reasons, e.g. B. Illness or vacation . In this case, only either the supervisor or the prevention supervisor is active at the same time. This form of prevention care is also called substitute care in practice.
The most important application of preventive care in the event of actual hindrance is likely to be the absence of the carer due to vacation. However, illness of the carer can also be an actual prevention. The controversy in the literature as to whether substitute support is even permissible for factual reasons has been resolved since July 1, 2005 , as a result of the express mention in Section 1899 (4) sentence 2 of the German Civil Code . Some courts believe that such preventive care is only permissible for a specific impending case of hindrance.
This is not practical; It is also permissible to appoint a substitute supervisor for all future (actual) incapacitation cases. The actual prevention will usually take a longer period of time (several weeks or months), but it can also affect individual days if a prevention supervisor has already been appointed for the case of later prevention and a specific and urgent need for action shows that the actual supervisor is is unreachable.
Occupational preventive care
The prevention supervisor can (like the prevented main supervisor) be a career supervisor. Section 1899 (1) BGB does not exclude this even in the new version (since July 1, 2005). However, the remuneration entitlements are different for the two prevention situations:
If the prevention is of a legal nature, the prevention supervisor is entitled to remuneration and reimbursement of expenses in accordance with the proven time and material expenditure. The hourly rate is according to § 6 i. V. m. 3 VBVG € 19.50, for specialist knowledge based on vocational training € 25.00, based on graduation € 33.50, each plus sales tax .
In the event of actual prevention, reimbursement of expenses according to § 1835 BGB and remuneration according to § 3 VBVG for actual activities, but the flat-rate remuneration according to § 4 , § 5 VBVG, is to be approved. The hourly rate is to be set at 27.00 € / 33.50 € / 44.00 € depending on the availability of care-specific specialist knowledge. The hourly rate includes reimbursement of cash expenses according to § 1835 Paragraph 1 BGB as well as any sales tax.
Web links
Individual evidence
- ↑ BayObLG BtPrax 1998, 32 = NJW-RR 1998, 869; BayObLG FamRZ 2002, 61.
- ↑ cf. BayObLG BtPrax 2001, 252; BayObLG BtPrax 2004, 32; OLG Zweibrücken FGPrax 1999, 182 = Rpfleger 1999, 534; Higher Regional Court Nuremberg NJW-FER 2001, 316
- ↑ BayObLG FamRZ 1999, 1303.
- ^ LG Stuttgart BtPrax 1999, 200; LG Frankfurt / Oder FamRZ 1999, 1221.
- ^ LG Cottbus BtPrax 2001, 172.
- ↑ on the other hand LG Hamburg FamRZ 1999, 797.
- ^ LG Frankfurt / Oder FamRZ 1999, 1221.
