Assistance (Switzerland)

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The curatorship is a Swiss legal institution , with the 1 January 2013 in adult protection law , the guardianship has been replaced. The assistance enables the officially ordered legal representation of an adult who is incapable of judgment and thus incapable of acting (Art. 16, 17 ZGB ).

In child protection law, guardianship over minors has been regulated in Art. 327a-c ZGB since January 1, 2013. The provisions of adult protection, in particular on the appointment of the assistant, the management of the assistant and the participation of the adult protection authority, are applicable accordingly (Art. 327c para. 2 ZGB).

Legal position until December 31, 2012

Organization of guardianship

The guardianship organs included the guardianship authorities (guardianship authority and supervisory authority), the guardian and the adviser. According to Art. 367 ZGB old version, a guardian had to protect and represent all personal and financial interests of the underage or incapacitated guardian. In contrast, an adviser was only used for individual transactions or was entrusted with asset management.

Official measures

Three measures were distinguished in the guardianship system:

  • The curatorship was the least restrictive measure. It was appointed at the request of the person involved or ex officio by the guardianship authority if a person of age cannot act in an urgent matter due to illness or absence and was unable to appoint a representative. The guardianship authority could also provide assistance if the legal representative of an underage or incapacitated person (e.g. parent / child) represented interests other than those of the person represented.
  • A person who was placed under the advisory board only had a limited capacity to act in relation to economic legal acts (for example buying or selling real estate, loans, gifts). The focus of the advisory board measure was therefore on the supervision of economic matters.
  • In terms of actual guardianship , a distinction was made between simple guardianship and, since the 1980s, welfare deprivation of liberty. In both cases it was the most restrictive of all guardianship measures. They were given in exceptional cases when the person needed special protection because of mental illness, mental weakness, alcoholism, other addictions or mismanagement. With the guardianship, a person was basically deprived of the ability to act. The welfare deprivation of liberty was pronounced if the person concerned suffered from mental illness, mental weakness, alcoholism, other addictions or severe neglect. She was placed in a suitable institution (closed / open psychiatry, detention).

Adult protection law

Since January 1, 2013, a distinction has been made between three different types of assistance and comprehensive assistance. The welfare deprivation of liberty has been replaced by the welfare placement . The new body is the Child and Adult Protection Authority (KESB).

Assistance

species

The law distinguishes between the

  • Accompanying - (Art. 393 ZGB),
  • Representation - (Art. 394, 395 ZGB) and the
  • Co-operation assistance (Art. 396 ZGB) as well as the
  • comprehensive assistance (Art. 398 ZGB).

The areas of responsibility of the assistance can include personal care, property management or legal transactions and should correspond to the needs of the person concerned (Art. 391 ZGB).

Subsidiarity and proportionality

With regard to the prerequisites, it depends on the extent to which the person concerned can still take care of their affairs themselves and, if necessary, has designated a person authorized to represent the person or there is a case of legal representation .

With a publicly notarized precautionary order (Art. 360 ZGB) or an advance directive (Art. 370 ZGB), a person who is capable of acting can commission a third party to represent them in the event of their later incapacity. The cases of legal representation, especially among spouses and registered partners, are regulated in Art. 374 ff. There is then no space for an officially ordered assistance (Art. 360, 388, 389 ZGB).

effect

The various types of assistance differ in their effectiveness, especially in whether and to what extent the person's ability to act is retained, restricted or completely eliminated.

Caring accommodation

literature

Web links

Individual evidence

  1. ↑ Art. 392 ZGB old version
  2. ↑ Art. 397a ZGB old version
  3. ↑ Adult protection law: Help instead of patronizing. In: Observer . March 9, 2016.
  4. ↑ Child and Adult Protection Authority (KESB) Region Rorschach: Leaflet Beistandschaften (Art. 393 - 398 ZGB) Retrieved on March 18, 2017.
  5. ^ Ivo Hungerbühler, Christoph Stutz: The precautionary order according to the revised ZGB Newsletter 02/2011
  6. ↑ Verena Nigg: Types and effects of assistance. Chart, 2012.