Trustee
Administrator is generally in the German-speaking area a legal subject who is supposed to protect the interests of a third party .
Germany
civil right
In German law, trustee means a person who is involved as a third party in the conclusion and execution of a contract, i.e. is not or will not become a party, and who is supposed to protect the interests of another, for example a supervisor or a deputy . According to the BGH, trustees are those persons who, because of their special expertise, place a high degree of personal trust in the contracting party and only thereby give the contracting party the guarantee that risky transactions will be carried out properly (see BGHZ 13, 313; 70, 337).
Bankruptcy law
In insolvency proceedings, if self- administration is ordered, an administrator is appointed instead of the insolvency administrator. The trustee has, among other things, to check the debtor's economic situation and to monitor the management as well as the expenses for the lifestyle. In addition, the trustee has to support the insolvent company in an advisory capacity.
Austria
The guardianship (guardianship) in 1984, the incapacitation and guardianship replaced for adults. The trustee ( curator ) is the legal representative of the person concerned within the scope of his assigned area of responsibility . Since July 1, 2018, the adult representation has replaced the guardianship.
Order
If an adult with an intellectual disability or mental illness is unable to take care of certain matters for himself without running the risk of being disadvantaged, a guardian is appointed. Physical disabilities and addictions are not a reason for appointing a guardian. If someone can manage their own affairs despite a disability or mental illness - for example with the help of their family or psychosocial services - no trustee may be appointed. The legal basis is § 273 of the ABGB .
Procedure
The first thing to do is to initiate legal proceedings to examine the need for an administrator to be appointed. Most of the time, a suggestion for guardianship proceedings comes from a relative, an authority or a psychosocial service. The suggestion can be made in writing or in the form of a conversation. The contact person is the guardianship judge of the district court that is responsible for the place of residence of the person concerned. Only the person concerned can apply to the court to appoint a trustee.
The district court decides in the proceedings outside of disputes . The judge must first get a personal picture of the person concerned during an initial hearing. Since July 1, 2007, the judge can also initiate a clearing procedure in order to have a clearing administrator take a closer look at the living conditions of the person concerned and possibly examine alternatives to the appointment of an administrator. Still seem to him after the conditions for the appointment of a trustee met, an opinion is one expert for psychiatry catch. Once the expert opinion is available, the court will make a decision after an oral hearing has been carried out . In this resolution , the areas of responsibility of the administrator are to be expressly recorded.
Group of people
- Related persons
Most of the time, the court appoints a family member or another person of trust of the person concerned as trustee ( Section 279 of the Austrian Civil Code ).
- Club administrator
Since 1984 there have been associations for guardianship recognized by the Ministry of Justice in Austria . The full-time and voluntary trustees of an association are appointed if no related person is available for this task.
- Lawyers or notaries
You will then be used as trustee if there are predominantly legal matters in which the person concerned needs support.
tasks
The range of tasks is determined individually by the judge for each case. The tasks are based on the specific issues of the person concerned and the severity of the disability or mental illness . With every appointment as trustee, the matter of personal care is included in any case. What is meant by this is to strive to provide the necessary medical and social care for the person.
- Examples
- Individual matter (e.g. for representation in proceedings at the workers' pension insurance institution)
- A group of matters (e.g. for "income and asset management", for "representation vis-à-vis authorities", "consent to medical treatment " ...)
- All matters
No trustee is obliged to actually take care of the person concerned. However, he is obliged to organize and ensure medical care and social care to the extent necessary. This basic task of the trustee is to ensure personal care .
Effects
After § 280 Civil Code, the legal capacity of a person for whom a guardian has been appointed, limited in its task groups. In German childcare law , this is only the case if, in addition to childcare, a reservation of consent was also ordered.
Guardianship Amendment Act 2006
The trustee law was changed with effect from July 1, 2007. The core contents of the Guardian Rights Amendment Act 2006 are:
- The suppression of the institute of guardianship in favor of taking care of the tasks in the family,
- a legal power of representation for next of kin ,
- the legal regulation of a health care proxy ,
- the possibility of a trustee order,
- the prevention of mass guardianship through a maximum of 5 guardians for private individuals as guardians and 25 for lawyers and notaries,
- an appointment of the association - in the case of association guardians - and not the employees of the association as administrator,
- to name the authority of suitable associations, trustees, patient advocates and residents' representatives,
- the obligation under consumer protection law to disclose the benefits covered by the social welfare or disability assistance provider in the event of accommodation in residential or nursing homes at the expense of social welfare or disability assistance.
Switzerland
The concept of trustee in Swiss law is ambiguous. In particular, it stands for:
- a so-called atypical body in debt collection and bankruptcy law . As such, he is responsible for the implementation of judicial composition proceedings ( stay of bankruptcy / restructuring liquidation), except official bankruptcy proceedings and out of court refurbishments (especially after debt consolidation predestined). In some cantons of Switzerland , an examination is necessary in order to be able to work as a guardian.
- the manager of a collective fund according to Art. 89b ZGB (in the version of December 19, 2008, entered into force on January 1, 2013)
- The right to care for adults is regulated by the adult protection law (ZGB Art. 360–455), in force since January 1, 2013. The adult protection authority is responsible for these care matters in Switzerland. This corresponds to its function and jurisdiction of the German supervisory court or the tasks of the Austrian district court or, in Liechtenstein, the regional court.
Web links
- Austria
- Overview of the topic on the help pages of the Federal Chancellery
- In-depth information on the Austrian guardianship and patient advocacy
- Inform the Ombudsman Board on the subject
- Legal text of the Guardian Act in the version of 1984 ( MS Word ; 87 kB)
- Text of the Administrator Amendment Act 2006 (PDF)
- Government rationale for the Administrator Amendment Act 2006 (PDF) (407 kB)
- Overview of the Administrator Amendment Act 2006 (PDF) (53 kB)
- Switzerland
Individual evidence
- ↑ help.gv.at: Appointment of an administrator ( memento of the original from April 24, 2017 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Marc Hunziker / Michel Pellascio, Repetitorium Debt Enforcement and Bankruptcy Law , 2008, p. 26 f.
- ↑ Marc Hunziker / Michel Pellascio, Repetitorium Debt Enforcement and Bankruptcy Law , 2008, p. 339
- ↑ Marc Hunziker / Michel Pellascio, Repetitorium Debt Enforcement and Bankruptcy Law , 2008, p. 319
