Natural will
The natural will is a legal term that encompasses the actually existing intentions, desires, valuations and action intentions of a person, even if the person is in a state of pathological disruption of mental activity that excludes free will determination , i.e. H. is usually incapable of doing business within the meaning of Section 104 No. 2 BGB .
The distinction between free and natural will is particularly important in the care law , since a carer may not be appointed against the free will of an adult ( § 1896 Paragraph 1a BGB), but against his natural will, if this is in his well-understood interest. The natural will is therefore not meaningless, but must be observed within the framework of the principle of proportionality , because the person being cared for may only encroach on the basic right to a self-determined life ( Article 2, Paragraph 1, Basic Law ) according to the standard of proportionality. The principle of proportionality is observed if an action against the natural will of the person being looked after is necessary in order to avert a considerable danger, and the act represents the mildest of the possible means and the action is not opposed by the presumed will of the person being looked after.
The natural will of the person being cared for is to be observed by the supervisor within the framework of Section 1901 (3) BGB. Also, against the natural will, a sterilization of the person concerned cannot be approved by the guardianship court ( Section 1905, Paragraph 1, No. 1 BGB), since in this special intervention the consent of the person concerned may not be withdrawn regardless of their mental or psychological state.
A deprivation of liberty can exist when an existing natural will is counteracted. On the other hand, in the case of a long-term unconscious person, it is not considered a deprivation of liberty if the room in which he or she lies is locked.
A fixation of a person against his natural will must be approved by a judge; the consent of a supervisor or authorized representative is not sufficient if the measure is of a longer duration ( generally longer than the following day within the meaning of Article 104 of the Basic Law, with recent high-level judgments fundamentally criticizing such long-lasting fixations) or this takes place regularly (e.g. always at night). In such cases, according to Section 1906 (4) BGB, the approval of the guardianship court is also required.
