Control Supervisor
The control supervisor (also called proxy supervisor or monitoring supervisor) is a legal supervisor appointed under German law who has the task of monitoring an authorized person . This form of care differs from all other caregiver tasks , as it can be arranged in parallel to a health care proxy, while otherwise health care proxy and care are mutually exclusive.
Priority of the health care proxy
The power of attorney has priority over the appointment of a supervisor ( Section 1896 (2) BGB). Therefore, it is actually not possible to appoint a supervisor in addition to an authorized representative, except in cases of error on the part of the guardianship judge , if he has no knowledge of the existence of a power of attorney in the context of a supervision procedure and therefore appoints a supervisor in ignorance of this. As soon as the existence of the power of attorney becomes known, the supervision is generally to be canceled or at least to be restricted with regard to the areas of responsibility to the extent that the power of attorney covers them in a legally effective manner. If, for example, there is a power of attorney only with regard to property law issues, but there is also a requirement to act in health care issues , the supervisor would retain the health care task area, but the asset management task group would have to be abolished ( Section 1901 (5) BGB; Section 1908d BGB).
On the one enduring powers of attorney so that such a situation does not even occur, should the central pension register of the Federal Chamber of Notaries are reported and on the other all persons since 1 July 2005 must submit such authorizations with the Guardianship Court once it from the care process become aware ( § 1901a BGB ).
Supervision in addition to the power of attorney
However, there is a situation in which a supervisor can be appointed in addition to an existing authorization and both activities are side by side. This is the case if the guardianship court comes to the conclusion that the principal is no longer able to control the authorized representative due to illness or disability and that there is a specific need for monitoring due to special circumstances. In this case, Section 1896 (3) of the German Civil Code (BGB) stipulates that a supervisor can be appointed whose task area is to exercise the rights of the person under care vis-à-vis their authorized representatives. This supervisor is commonly referred to as a control supervisor (or a proxy supervisory or supervisory supervisor). He is not to be confused with the counter advisor ( Section 1792 BGB in conjunction with Section 1908i Paragraph 1 BGB), whose task it is to supervise another advisor in the area of asset management.
Requirements for the appointment of a supervisor
There does not have to be any evidence of abuse of power of attorney; it is sufficient that there is a need to control the power of attorney, for example in the case of large assets. Case law on this:
A power of attorney according to Section 1896 (3) of the German Civil Code (BGB) can only be ordered if it is established that a power of attorney was validly granted and that it has not expired. This means that the principal must have been legally competent when the power of attorney was granted . The appointment of a power of attorney is not permitted if an initially valid power of attorney has been effectively revoked ; it therefore also presupposes the continued existence of the power of attorney.
The appointment of a power of attorney is required if the person concerned has a general power of attorney if there is a specific need for monitoring and the person concerned can no longer exercise his or her right to information and invoicing according to § 666 BGB vis-à-vis the authorized representative due to his mental illness. Suspicion of abuse is not required.
If an authorized representative raises considerable doubts about his or her honesty and the resulting risk to assets cannot be sufficiently averted through control supervision, a proxy can be appointed.
1. A power of attorney can be appointed if the person concerned is unable to monitor the authorized representative himself and the scope and difficulty of the business to be carried out by the authorized representative make monitoring of the authorized representative appear appropriate.
2. If the proposed general power of attorney is granted after the person concerned has made a written proposal for the selection of a supervisor and before the requirements of Section 1896 (1) BGB are met, this does not exclude the appointment of a proxy supervisor .
3. A supervisor with the task of "asserting rights against the authorized representative" (proxy supervisor) can also regularly revoke the relevant power of attorney. He has a discretion in the resolution on this .
Control Supervisor Rights
The supervisor with the tasks specified in Section 1896 (3) of the German Civil Code ( BGB) has a right to information from the authorized representative ( Section 666 of the German Civil Code). He can therefore request the submission of documents from the power of attorney.
If the power of attorney ends, the previous authorized representative must hand over all documents and assets of the principal to the supervisor ( § 667 BGB).
The supervisor, to whom this authorization is expressly assigned as an independent group of tasks, can also revoke the power of attorney ( Section 671 (1) BGB), but this should only correspond to the supervisor's duties if there is a misuse of the power of attorney or if the authorized representative no longer wants to perform the activity himself . The authorized representative can also declare the termination of the power of attorney to the supervisor ( Section 671 (1) BGB in conjunction with Section 1902 BGB). After the power of attorney has expired ( Section 168 BGB), the guardianship court would then have to decide again on the scope of care.
Compensation for the control officer
The control supervisor can be ordered as a volunteer supervisor or professional caregiver , (also club supervisor authorities caregiver care team or care authority ), if there is a professional caregivers activities, has the control supervisor entitled to the same flat supervisor compensation ( § 4 , § 5 Vormünder- and caregivers compensation law - VBVG ) like any other career supervisor. As a voluntary supervisor, he is only entitled to reimbursement of expenses ( § 1835 BGB), possibly in a lump sum of 399 € per year ( § 1835a BGB).
See also
Power of attorney , care (law)
Individual evidence
- ↑ BayObLG, decision of May 27, 1993, Az. 3 Z BR 78/93, guiding principle = MDR 1993, 872.
- ^ LG Munich I, decision of December 2, 1997, Az. 13 T 18460/97, guiding principle.
- ↑ BayObLG, decision of March 14, 2001, Az. 3Z BR 43/01, guiding principle = BtPrax 2001, 164.
- ↑ a b BayObLG, FamRZ 1994, 1550.
- ↑ BGH, decision of July 28, 2015, Az.XII ZB 674/14
