Asset care
Asset management refers to the administration of a person's assets by a trusted person. Asset management is part of parental responsibility , but guardians and legal guardians also take care of the assets of the ward or the guardian, provided they have been assigned this task.
principle
Since the legislature assumes that guardians and carers have a high potential for abuse of property management, property management is under the control of the family court or the care court .
Guardians and supervisors have to prepare a list of assets at the beginning of the guardianship or supervision ( § 1802 BGB) and then give an annual account of the assets to the court. ( § 1840 BGB) The invoice should include all income and expenses of the ward or the person under care and should be provided with receipts. ( § 1841 BGB) The family court is obliged to properly check the invoice. ( § 1843 BGB) After the guardianship or supervision has ended, the guardian or supervisor has to send a final invoice to the court. ( § 1890 BGB)
Ensuring judicial control presupposes that the assets of the ward or the custodian must be managed separately from the own assets of the guardian or guardian. This also serves the purpose of protecting the assets against access by any creditors of the supervisor. From this it follows that the administration of the assets in an escrow account is generally prohibited. Only the youth welfare office as official guardian is allowed to manage the assets of its ward in a collective account with the prior approval of the family court due to a special regulation in Section 56 (3) SGB VIII.
An exempted guardian or an exempted supervisor is generally exempt from accounting obligations.
Wealth of the ward or the supervised
The guardian or supervisor has the duty to preserve and increase the assets of the ward or the supervised, the so-called ward money , insofar as it is not needed for current livelihood. In principle, he is only obliged to serve the interests of the ward or the person being cared for and not the interests of third parties; exceptions, however, apply to testamentary orders from a testator and to conditions in the context of a donation, which must generally be followed unless the court grants an exemption. ( § 1803 BGB) The guardian or the guardian may not use the assets of the ward or the guarded person for his own livelihood. ( § 1805 BGB)
There is an express prohibition of donations : The guardian or the guardian may not give away the assets of the ward or the guardian. The only exceptions to this are gifts that correspond to a moral obligation, for example furniture that is no longer required when vacating an apartment in connection with a move to a nursing home may be donated to charitable organizations. ( § 1804 BGB)
Approval requirements
In addition to the administration of assets, entering into legal transactions with which a transfer of assets is obtained or the ward or the person under custody is burdened with claims is also part of asset management. In practice, however, the vast majority of these legal transactions require the approval of the family court.
According to § 1821 BGB, all legal transactions in connection with land and ships require the prior approval of the family court; this includes not only the acquisition, but also the sale, the encumbrance and the entry of easements . After para. 2 transactions with respect are mortgages , land charges and annuity charges specifically exempted from the permit requirement.
Various other legal transactions are also subject to approval according to § 1822 BGB:
- Legal transactions through which the ward is obliged to dispose of its assets as a whole (e.g. opening of consumer insolvency proceedings ), as well as transactions in the context of inheritances or claims to compulsory portion
- the succession, the waiver of the compulsory portion and the inheritance agreement
- the acquisition or sale of a company as well as the establishment of a partnership agreement (the mere establishment and closure of a company itself does not require approval, but should also be submitted to the court for approval, § 1823 BGB)
- Land or company leases
- Rental and lease contracts that are designed for a term of more than one year from the age of majority, four years for those under care ( Section 1907 (3) BGB) (according to case law, however, this only includes temporary rental contracts, as usual rental contracts are terminated at any time can)
- Training and employment contracts that are not limited in advance to less than one year
- Loan agreements
- taking out bonds or entering into liabilities from a bill of exchange or comparable security
- the entering into a guarantee
- the granting of a power of attorney
- Out-of-court settlements if the value of the subject of the dispute exceeds 3000 euros, as well as entering into arbitration agreements
- Transactions through which an existing security for a claim of the ward or the supervised is to be canceled or reduced
If the legal transaction requiring approval is a unilateral legal transaction, the lack of approval by the court renders the legal transaction ineffective. ( § 1831 BGB) Other legal transactions are not ineffective, but entitle the business partner to revoke the transaction until the court approves the transaction, unless he was aware of the lack of approval from the court when the transaction was concluded. ( § 1830 BGB)
Subsequent approval is generally possible for an unlimited period, unless the business partner expressly requests the guardian or supervisor to submit the approval. Then a period of four weeks applies, after which the approval is deemed to be denied, unless the legal guardian or supervisor has previously given the business partner the approval of the court. When a ward comes of age, it can itself approve legal transactions that require approval and for which no approval was available up to this point in time. ( § 1829 BGB)
Property care as part of parental custody
The parents of a child are freer to look after their child's property. Although the parents also have to manage the child's assets according to economic principles ( Section 1642 BGB), there are no more detailed regulations such as in guardianship law.
A testator of the child can exclude the parents from caring about the property of the inheritance by a will; such a declaration also extends to related rights such as inheritance claims for damages. ( § 1638 BGB) Otherwise, the testator, like a guardian, can give the parents instructions on asset management. ( § 1639 BGB) If the child inherits more than 15,000 euros or receives a maintenance settlement or a gift in this amount, the parents are obliged to submit an invoice to the family court, unless the testator or the donor has expressly granted an exemption from this requirement . ( § 1640 BGB)
The parents of a child are also prohibited from donating their assets. ( § 1641 BGB)
For certain legal transactions, the parents also require the approval of the family court. In the case of an inheritance, the succession does not require the approval of the family court if the child is only called to inherit because the parents have previously refused the inheritance. ( § 1643 BGB)
If the parents buy movable objects for the child from the child's assets, it is legally assumed that these objects become the property of the child, unless expressly agreed otherwise. ( § 1646 BGB)
Unlike the guardian, the parents are allowed to use the child's assets for their own livelihood as well as for the livelihood of the minor siblings, provided the child does not need the assets for their current livelihood. ( § 1649 BGB)
Individual evidence
- ↑ BGH, decision of October 31, 2018, AZ XII ZB 300/18