Legal representative (Germany)

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The legal representative is a representative whose power of representation is not based on a power of attorney , i.e. a power of representation granted by legal transaction , but results directly from statutory provisions.

Legal representatives in German law

Legal representatives are, for example, the parents (or the sole custodial parent) of their underage child. Also the guardian if the parents do not have parental authority . The Board for its joint-stock company or its registered association , the managing director for its GmbH or the shareholders for the general partnership are also legal representative.

Representation requirement

Incapable of legal capacity ( § 104 BGB ) and legal persons always require a legal representative in order to participate in legal transactions. Persons with limited legal capacity (minors from 7 years of age, § 106 BGB) require the consent of their legal representative in accordance with § 107 BGB for a declaration of intent through which they not only gain a legal advantage . One of a limited legal capacity closed without the prior consent contract is rendered ineffective and can subsequently by permission of the legal representative to take effect ( § 108 BGB).

Legal representatives for special areas

When looking after adults, the supervisor is the legal representative within the scope of duties established by the court ( Section 1902 BGB). However, the person being cared for can still conclude legal transactions themselves if there is no reservation of consent ( Section 1903 BGB) or the person is not incapable of contract for other reasons ( Section 104 No. 2 BGB). In contrast to incapacitation until 1992 in Germany, the appointment of a supervisor as such does not impair legal capacity.

A carer is also the legal representative within the scope of the court-determined sphere of activity ( §§ 1909 ff. BGB, §§ 1960 ff. BGB), § 57 ZPO .

In administrative proceedings , if the party involved is incapable of doing business, a special representative can be appointed for the administrative proceedings ( Section 16 VwVfG ; Section 15 SGB ​​X , Section 81 Tax Code ).

A restricted form of legal representation among married couples (and registered partners ) is the power of keys according to § 1357 BGB, in which one spouse can carry out legal transactions with effect for the other to cover the life needs of the family.

A more far-reaching power of representation (also for questions of curative treatment ) within the family, as provided for in the draft law of a second law amending childcare rights in 2005, has not become law due to constitutional concerns. It is currently (2016) discussed for decisions on medical treatments under the designation "assistance among spouses", e.g. In 2015, for example, the Justice Ministers' Conference made a recommendation for a corresponding amendment to the law.

See also