Counter guardian
The counter- guardian is a special form of legal representation, which serves to control the actually appointed guardian in the area of property management ( Section 1792 BGB ). The counter- guardian has control and monitoring duties and thereby relieves the family court (in the case of guardianship) or the supervisory court (in the case of care). In the area of caring for adults, the role of counter- carer is mentioned (due to the reference in Section 1908i Paragraph 1 BGB to Section 1792 BGB).
Appointment of the counter-guardian
The judicial officer of the family or supervisory court is responsible for the appointment . In practice, the counter-guardian is usually appointed to manage larger assets. In particular, he has the task of monitoring the guardian / supervisor and calling in the family or care court in the event of non- compliance. The guardian / supervisor has to give the counter-guardian / counter-supervisor information ( § 1799 BGB ). The appointment of a counter-guardian / counter-supervisor is rather the exception. If there is no counter-guardian / counter-supervisor, the family court or the guardianship court ( Section 1812, Paragraph 3 BGB) takes its place . The counter-guardian / supervisor can be active on a voluntary basis or professionally . In the latter case, the professional activity according to § 1 VBVG must be expressly mentioned by the court in the appointment decision.
Tasks of the counter-guardian
- Supervision of the guardian and reporting of breaches of duty to the court, § 1799 BGB
- Participation in the inventory of assets, § 1802 BGB
- Approval for blocking notices in the context of the ward money system , § 1809 BGB
- Approval of regular ( mouth-proof ) financial investments within the framework of § 1807 BGB , § 1810 BGB
- Approval of dispositions of money, § 1812 BGB
- Approval for the transfer of objects, § 1824 BGB
- Hearing in case of judicial approvals, § 1826 BGB
- Liability in the event of a violation of one's own obligations, § 1833 BGB
On the other hand, the counter-guardian cannot approve investments of the guardian according to § 1811 BGB (e.g. purchase of investment units) or the transactions requiring approval according to §§ 1821, 1822 BGB. The guardianship court must always be involved here.
- Audit of the annual accounts (accounting), § 1842 BGB
- Examination of the final invoice and provision of information, § 1891 BGB
Remuneration of the professional counter-guardian
The counter-guardian of a minor is remunerated according to the specific amount of time required, § 3 VBVG. The hourly rates are between 19.50 euros and 33.50 euros, depending on qualifications, plus sales tax . Reimbursement of expenses according to § 1835 BGB is paid additionally.
In the case of particular difficulty, the hourly rate can be increased. If the court grants the guardian of a wealthy ward an increased hourly rate due to extraordinary difficulties, this can in principle also be used for the remuneration of the counter-guardian appointed to monitor this guardian: BayObLG BtPrax 2004, 195 = FGPrax 2004, 236 = FamRZ 2004, 1899 = Rpfleger 2004 , 565.
Remuneration of the professional counter-supervisor
A professional counter- supervisor may be appointed alongside a professional supervisor in accordance with Section 1899 (1) BGB . This is an exception to the prohibition on appointing multiple professional carers. The counter supervisor has the same flat-rate remuneration claim as the other professional supervisor. Legal basis: § 4 and § 5 VBVG.
For the assessment of the supervisor's remuneration according to § 5 VBVG, the initial establishment of the supervisory relationship is also decisive in cases in which the initially active volunteer supervisor dismissed due to insufficient suitability and instead appoints a professional supervisor or subsequently a counter supervisor according to §§ 1908i, 1792, 1799 BGB has been: Schleswig-Holstein OLG, decision of February 2, 2006, Az. 2 W 12/06.
