Guardianship (from Old High German munt , screen protection, violence ') refers to the statutory legal care for an underage person ( ward , outdated Vogt child ) that its own capacity is lacking, and for the wealth of this person.
This article deals in particular with the legal situation in Germany , Austria and Switzerland .
Conceptual history: cheerful, coming of age, paternal violence
The old high German term munt goes back to the military constitution of the early Middle Ages and means "umbrella, protection, violence". Where free men were generally able to use weapons , they acquired the right to carry weapons when they came of age. Because only those who could protect themselves with a weapon were of age . The ability to use weapons thus created a "male legal order of society" and, as a secondary consequence, a "warlike patriarchalism ". While numerous agricultural work was carried out by both sexes, the craft of war was subject to a particularly radical gender polarization . This was symbolized by the juxtaposition of sword and spindle.
With the development of military technology and warfare, military service has specialized in a narrow elite since the Carolingian Empire . Due to the manorial protection , the subjects were relieved or excluded from military service and the use of weapons was no longer relevant for the majority of the population. A non-warlike patriarchalism developed among farmers and in the handicrafts and - in contrast to the nobility - there was more common ground in the working and living world of men and women. Due to the economic interests of the landlord and the influences of Christianity , the "husband-centered household family" developed with the dual leadership of house father and house mother.
But through the court constitution, the military constitution continued to work in a mediated form and justified the prominent position of the head of the house, i.e. H. the paternal cheerfulness or paternal violence . All members of the house, d. H. Women, children and servants were subject to paternal violence.
The position of the head of the house therefore stood for “legitimate violence and good power” on the one hand. On the other hand, however, it was "tied to the (physical and psychological) performance, leadership and defensiveness of the man" and passed on to a younger successor as this protection and performance disappeared. This concept of competition- and performance-based male patronage was the West Christian variant of "patriarchal rule".
With the change in the social order of the Middle Ages, there was initially emancipation and legal maturity of the servants . With regard to children, the dominant nature of paternal power declined in the course of the 20th century and became parental custody under the state guardianship , with the child's best interests first. With regard to women, immaturity was also reduced in the course of the 20th century, so that women were increasingly granted civil rights - known as women's rights .
A guardian (obsolete Gerhab ) is a person who is entrusted with guardianship. It acts as the legal representative of the ward. The latter has always been a minor in Germany since the care law reform of 1992 . Since 1992, adults can no longer be incapacitated and placed under guardianship in Germany . Instead, the court can order legal supervision ( § 1896 BGB). In Austria is the comparable protection Institute for Adult since 1984 Sachwalterschaft . Guardianship is to be distinguished from guardianship (§§ 1909-1921 BGB), which only has the protection of a limited group of matters as its object. So is parental authority fully comprehensive, including therefore the asset custody and custody ( § 1631 BGB). A guardianship ( Section 1909 BGB), on the other hand, only relates to individual areas, for example health care or the right to determine residence .
In Switzerland , with the new adult protection law in the civil code, the legal institution of incapacitation has been abandoned since the beginning of 2013 and replaced by various levels of appropriate assistance . In the legal systems of many other countries, however, there is still a guardianship for adults that requires incapacitation, including countries with German-speaking legal practice such as Italy, Luxembourg and Belgium.
The grammatical gender of the word guardian is masculine, so that women are usually also referred to as the guardian ; the feminine form of guardian or, more rarely, guardian, was used earlier. In Switzerland, where one particularly busy around gender-neutral language trying, the molds are for female guardians Vormundin or Vormündin recommended. Of an outdated form Vormunder or guardians derived the plural guardians and still in the administrative language detectable female form guardian .
In the Middle Ages , "the guardians" referred to the members of the church council as secular help from the pastors .
Legal situation in Germany
The provisions on guardianship are in §§ 1773–1895 BGB. The assistance is to be distinguished in Germany and regulated in the §§ 1712-1717 BGB.
A minor must be appointed a guardian if he or she is not under parental authority (for example, because the parents have died), the parents' custody of their child has been completely withdrawn or the marital status is unknown. A guardian must also be appointed for a foundling ( Section 1773 BGB). The appointment is made ex officio by the responsible family court , so an express application is not required. Guardianship can be ordered before the child is born if it has already been established that guardianship will be required when the child is born. ( § 1774 BGB)
If the child is not under parental custody at birth, for example because the mother is unmarried and underage, the youth welfare office becomes an official guardian by law without the need for an appointment by the local court. ( § 1791c BGB) Even during an ongoing adoption process, the youth welfare office becomes the official guardian by law. ( § 1751 BGB)
Selection of the guardian
Parents appoint a guardian
Parents may by testamentary disposition determine to whom in the event of an early death , children should come ( § 1776 BGB). You will appoint a guardian who will take on parental responsibility. The order of the last deceased parent applies. The family court is generally bound by the decision insofar as it serves the best interests of the child / children, unless the guardian is prevented or the assumption of guardianship is delayed. Conversely, the parents can also exclude the appointment of a specific person as guardian for their children, and the family court must comply with this in the same way. ( § 1782 BGB)
A ward who has reached the age of 14 and is not completely incapable of doing business (as a rule, children from the age of 7 have limited legal capacity) can object to the appointment of a specific person as guardian. Underage persons and those who are themselves incapable of doing business or who are under supervision are generally not considered as guardians. ( § 1780 , § 1781 BGB) The parents' preferred candidates are often the godparents .
Duty to assume guardianship
Every German is obliged to assume guardianship if he is called by the family court and there are no reasons against it ( Section 1785 BGB). Reasons to refuse guardianship are:
- exercising guardianship would make it more difficult for the appointed guardian to look after his or her own family,
- he (the appointed guardian) has reached the age of 60,
- he has to care for more than three minors ,
- he is unable to exercise guardianship due to illness,
- he lives too far from the ward
- he already has more than one guardianship, guardianship or care (all § 1786 BGB),
- As a civil servant or religious servant, he does not have the consent of the employer to assume guardianship ( § 1784 BGB); Pursuant to Section 97 (4) of the Federal Civil Servants Act, this does not apply to voluntary guardianship led by federal civil servants.
If a person refuses to assume guardianship for no reason, the family court can impose a fine on this person. ( § 1788 BGB) In addition, the person has to pay damages to the ward for the damage caused by the resulting delay in guardianship. ( § 1787 BGB)
Selection by the family court
If the parents have not named a guardian, the family court will select the guardian after hearing the youth welfare office. Relatives or by-laws of the ward are also to be heard, provided that this is not associated with disproportionately high expenditure of time and money. The family court has to take into account the family relationships and the personal ties of the ward ( Section 1779 BGB).
If there is no suitable person in the ward's family and there are also no other possible volunteer guardians (e.g. foster parents), the family court can appoint an association recognized by the State Youth Welfare Office with its consent as the association guardian ( Section 1791a BGB) or also appoint the youth welfare office as official guardian. ( Section 1791b BGB) In this case, the association or youth welfare office must commission a suitable person to carry out the guardianship. In the case of youth welfare office employees, the number of cases per employee is limited to 50 ( § 55 SGB VIII).
The professionally led guardianship, so-called professional guardian, plays a much smaller role than the job supervisor. It is most likely to be considered in the case of unaccompanied minors as long as they are still housed in asylum seekers' accommodation.
A married couple can be appointed as guardian for a child together, B. often occurs with foster parents . Otherwise, however, several guardians should only be appointed in exceptional cases; in particular, siblings should only have one common guardian. ( § 1775 BGB) A ruling by the Munich District Court on 5 August 2016, the rules for married couples is also partnered to expand homosexual couples, even though the law calls this explicitly, because here is a plan illegal loophole exists.
In the event that several guardians are appointed, the family court can distribute the tasks to the individual guardians. Otherwise, they generally act jointly; in the event of a dispute, the family court decides. ( § 1797 BGB)
Guardian Rights and Duties
The guardian has the right and the duty to look after the ward's person and property, in particular to represent the ward. If the guardian has not been determined by the parents willingly, the family court has to select the guardian after hearing the youth welfare office.
The guardian is subject to the supervision and control of the family court (responsible there is the judicial officer ) and needs the approval of the family court for numerous legal acts , cf. Sections 1809 ff, 1821 - 1824 BGB. He has to report regularly to the court and to prove the asset management (§§ 1802, 1839 ff. BGB). He is the legal representative of the ward. Personal support is to be ensured through a fundamentally monthly frequency of visits (Section 1793 BGB).
As far as the guardian administers ward money , he has to invest it in a ward-proof way (§ § 1807 ff. BGB). In the case of larger asset management, the guardian (not the official guardian) can be assigned a counter- guardian . A guardian named by the parents can be exempted from various authorization and accountability obligations ( Section 1857 BGB). These exemptions are also available to association and official guardians ( § 1857a BGB).
In the area of personal care, the guardian is subject to the same restrictions as the parents (e.g. §§ 1626 Paragraph 2, 1631 to 1631c, 1795 BGB). He is also capable of giving consent with regard to transplants (Sections 1a, 4 of the Transplantation Act ) and, if the ward dies, he must be buried under the burial laws . It is subject to special restrictions under the Law on Religious Upbringing . The guardian may only consent to medical treatment if the minor is not yet able to consent .
After the end of the guardianship, the previous guardian has to give the previous ward an account of his activity and surrender managed assets (§ 1890 BGB). For obligations that the guardian has entered into on behalf of the ward towards a third party, the ward is only liable within the framework of § 1629a BGB. If the guardian has culpably caused damage to the ward, he has to pay for the damage (§ 1833 BGB), whereby the statute of limitations is suspended for the duration of the guardianship (§ 207 BGB). An existing liability insurance may apply for this.
Costs of guardianship
Guardianship is generally free of charge, unless it is a professional guardian. Then the family court has to state this fact in the order. ( § 1836 BGB)
According to the Guardian and Supervisor Remuneration Act, the professional guardian receives remuneration for proven time expenditure, which depends on the professional training of the professional guardian and is between 19.50 € and 33.50 € per hour. As of July 27, 2019, the hourly rates will increase by 17% to € 23 to € 39.50. In exceptional cases, this remuneration can be increased, provided the guardian is not penniless. For the same reason, a voluntary guardian (but not the youth welfare office or the association) can exceptionally be granted remuneration from the ward's assets if the guardianship presents particular difficulties.
A guardian is also entitled to reimbursement of expenses for expenses incurred as part of guardianship. The guardian can either prove each item individually or (except for the club and the youth welfare office) claim a flat-rate fee of 399 €. ( § 1835a BGB) Services in the context of the trade or profession of the guardian also apply to the expenses, for example a lawyer appointed as a guardian can claim the usual lawyer remuneration for his legal services from the guardian ( § 1835 para. 3 BGB).
If the ward is penniless, the guardian can claim remuneration and reimbursement of expenses from the state treasury. This does not apply to the youth welfare office and the association, which in this case go away empty-handed ( § 1835 Paragraph 4 and 5 BGB). Whether a ward is penniless depends on the principles of social welfare as they apply to assistance in special life situations ( § 1836c BGB, i.e., among other things, that there is an asset allowance of € 5,000). If the ward is unable to pay the costs, or only partially or only in installments, it is legally considered to be penniless. Maintenance claims are also part of the income to be used, but these must be asserted in court, because the persons liable for maintenance refuse to pay maintenance, the ward is still considered penniless for the time being ( § 1836d BGB). In contrast to social welfare, for example, there is no restriction of the maintenance obligation to first-degree relatives, so that maintenance claims can also be made against grandparents and great-grandparents or against grandchildren and great-grandchildren.
Insofar as the state treasury has satisfied the guardian's claims because the ward is penniless, the claim is transferred to the state treasury, which can claim these benefits up to the expiry of the statutory limitation period of three years, provided the ward becomes effective later. If the ward dies, costs are reimbursed by heirs analogous to the social welfare regulations, so that the heirs have to pay the inheritance above a certain amount to the state treasury ( § 1836e BGB).
Persons under guardianship lack their own legal capacity . A guardian acts as the legal representative of the ward and requires the approval of the family court for numerous legal acts . If the family court considers a legal transaction submitted to it for approval not to require approval, it will issue the guardian with a corresponding notification according to § 1828 BGB, a so-called negative certificate. This order of the court cannot be interpreted as meaning that it wanted to approve the transaction as a precautionary measure; it is not the same as a permit, since no examination of the ward's interests is required for this decision. The negative clearance has no effect on the effectiveness of the legal transaction and is not binding on the trial court or the land registry .
Termination of Guardianship
The guardianship ends when
- the ward becomes of legal age , i.e. the 18th year of life (§ 2 BGB)
- the unmarried minor mother of the ward comes of age,
- the ward has been legally adopted or
- the reasons for the establishment of guardianship no longer exist and the court cancels the order by which the guardianship was established (for example, parental custody is no longer suspended or is transferred to the parent again).
- when locating the parents of a foundling
- the ward dies (§§ 1698a, 1893 BGB)
Assistance for minors
A guardianship for minors is a voluntary legal representation to determine paternity or to enforce maintenance claims.
Legal situation in Austria: legal guardian
Guardianship, curator, adult representation
The term custody is used for minors , which is usually held by the parents, but can also be transferred to others. The legal guardian is the legal guardian and guardian for minors.
Parents may not have the following guardian of their children in Austria by will determine. In the case of custody of both parents , the guardianship goes back to the surviving parent, in the other case the guardianship court determines the custodian. This is generally to be determined in the interests of the child's best interests and is limited to the group of grandparents, the parent who has not been custodial or existing foster parents ( Section 178 custody if one parent is prevented and Section 185 ABGB).
For adults who are limited in their decision-making ability due to a mental illness or a comparable impairment, there are four pillars of the representation of adults in need of support in accordance with the Adult Protection Act: the health care proxy, the elected adult representation, the statutory adult representation and the judicial adult representation.
The Child Welfare Act allows courts to appoint a child’s counselor.
Legal situation in Switzerland
The guardianship law from 1912 was replaced for adults on January 1, 2013 by the adult protection law, regulated in Art. 360 ff. ZGB . Guardianship over minors has since been regulated in Art. 327a – c ZGB. The Child and Adult Protection Authority (KESB) was created as a new authority . There are several types. The escort is voluntary and advisory, with the consent of a person in need, and does not restrict the person. A representative deputy does not restrict the person in need, but the deputy can also conduct business on behalf of the person without their consent. A person's ability to act is restricted in certain areas in the case of a participation standby. Comprehensive assistance is established for persons who are permanently incapable of judgment and thus incapable of acting.
Guardianship in Literature
The relationship between ward and guardian has often been shown in the literature. A particularly popular example is E. Marlitt's novel In the House of Commerce Council (1876), in which the ward, a young heiress, is deprived of her property by a fraudulent guardian.
- Supplementary custody
- Adventizien (usufruct of the property of a house child)
- Gender guardianship
- Werner Bienwald: Guardianship, guardianship and care law in social work. 3rd, revised edition. Decker Müller, Heidelberg 1992, ISBN 3-8226-0892-0 .
- Mirjam Heider: The History of Guardianship since the Enlightenment. Nomos, Baden-Baden 2011, ISBN 978-3-8329-6828-1 .
- Helga Oberloskamp (ed.): Guardianship, guardianship and assistance for minors. 3. Edition. Beck, Munich 2010, ISBN 978-3-406-58184-7 .
- ↑ Michael Mitterauer : Middle Ages. In: Andreas Gestrich , Jens-Uwe Krause , Michael Mitterauer: History of the Family (= Kröner's pocket edition . Volume 376). Kröner, Stuttgart 2003, ISBN 3-520-37601-6 , p. 316ff.
- ↑ Reinhard Sieder : The family myth and romantic love in the condition postmoderne. In: Jürgen Hardt, Fritz Hardt, Matthias Ochs, Marion Schwarz, Thomas Merz (eds.): Longing for a family in postmodernism: parents and children in therapy today. Göttingen 2010, p. 46.
- ↑ Reinhard Sieder: Patchworks: The family life of separated parents and their children. Stuttgart 2008, p. 78.
- ↑ Reinhard Sieder: The family myth and romantic love in the condition postmoderne. In: Jürgen Hardt, Fritz Hardt, Matthias Ochs, Marion Schwarz, Thomas Merz (eds.): Longing for a family in postmodernism: parents and children in therapy today. Göttingen 2010, pp. 45-72.
- ↑ Reinhard Sieder: Patchworks: The family life of separated parents and their children. Stuttgart 2008.
- ^ Katharina Parr: The best interests of the child in 100 years of the German Civil Code. Würzburg 2005, p. 184 ff.
- ↑ a b guardian, guardian ... to guardianship. In: Jacob Grimm , Wilhelm Grimm (Hrsg.): German dictionary . tape 26 : Vesche – Vulkanisch - (XII, 2nd section). S. Hirzel, Leipzig 1951, Sp. 1327-1329 ( woerterbuchnetz.de ).
- ↑ Source: Swiss Conference of Equal Opportunities Commissioners (ed.): From Officials to Zimmerin - Dictionary for a gender-equitable administrative language (extracts available online from the Department for Equality between Women and Men at the University of St. Gallen )
- ↑ German law on the remuneration of guardians and carers
- ↑ Global guideline GR J 6/99 ( page no longer available , search in web archives ) (PDF; 35 kB) of the Free and Hanseatic City of Hamburg (sections 4 and 5)
- ^ Job advertisement of the State of Berlin, June 2010] (Code 4040-V, seen on January 15, 2011)
- ↑ Rights of homosexuals: the court grants guardianship to foster mothers. Spiegel online from August 5, 2016
- ↑ BGB-RGRK (ed.), The Civil Code: Commentary , Volume IV, 1999, § 1828 Rn. 16
- ↑ BGHZ 44, 325
- ↑ Adult protection law: Helping instead of patronizing observer , March 9, 2016