Ward money

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Ward money is the capital assets belonging to a ward's assets . The guardian is obliged to invest this money in a special form, known as `` guardian ' ', and with interest.

All investments where there is a high degree of probability that there will be no loss of the value of the investment are guaranteed to be completely safe ; the loss in value due to inflation is, however, implicitly tolerated. The investment is to be made in fixed-interest German government bonds or another form of investment that has been expressly declared by the legislator to be safe.

The handling of ward money is legally regulated in § 1805 ff. BGB .

These regulations also apply to other legal representatives : via § 1908i Paragraph 1 BGB for carers and via § 1915 BGB for carers , in particular absentee carers and estate administrators . The family court is not responsible for any necessary permits , but the supervisory court or probate court.

Obligations to invest ward money

In the case of funds from the ward or cared for that they do not need for current living expenses (usually in the next 3 months), the legal representative must ensure an interest-bearing financial investment ( Section 1806 BGB). When caring for an adult, the carer must take into account the wishes of the person being cared for in accordance with the general official duties ( Section 1901 (2) BGB). This investment must be made in a gilt-edged manner. The legal representative also needs judicial approval for the widespread financial investment, unless he belongs to the group of “exempt” guardians ( § 1852 BGB) or supervisors according to § 1908i Paragraph 2 BGB.

Other funds to be invested in a confidential manner

According to a widespread misconception, the requirement for a ward-proof investment applies not only to agreements and for ward money, but also in a number of other alleged legal cases. As a rule, however, it is a matter of other types of obligations or mere recommendations to avoid liability risks: Custody funds should be invested in a tram-safe manner to avoid liability risks, so that e.g. B. Students on a school trip can have their full amount repaid at any time. Funds administered on a voluntary basis by associations and local groups or ecclesiastical and small political communities should as a rule be invested safely in order to avoid risks that could result from a lack of specialist knowledge on the part of those responsible. The same applies to recognized non-profit status (e.g. foundation assets or the assets of non-profit associations ) if the statutes do not provide anything specific. The pension reserve of the federal government and the federal states for the future financing of civil servants' pensions should generally be invested securely. Direct insurance (with and without deferred compensation ) and other pensions (in the case of pension funds ) should also, as a rule, be insured against the bank. Only for the social security agencies is there a requirement for investment of funds related to the protection of minors in Section 80 of Book IV of the Social Code. However, it does not specify a selection of specific investment options, but merely stipulates in the abstract that losses must appear to be excluded when investing, sufficient liquidity must be ensured and the return must be reasonable.

The popular error that the law prescribes a safe investment for children's assets is particularly persistent, but also the reverse error that the security of the asset no longer plays a role for children's assets today. It feeds on the fact that before the reform of the BGB by the SorgeRG , which came into force on January 1, 1980, according to § 1642 BGB old version , children were still regarded as wards of their parents with regard to property care . Parents therefore had to invest their children's money before the reform was completely safe. With the reform, these strict requirements have been replaced by the obligation to invest children's assets according to the principles of economic asset management (§ 1642 BGB new version). In contrast to ward money, it is not even necessary to obtain judicial approval in advance for children's assets. Only if the parents disregard the principles of economic asset management can the family court withdraw or restrict their asset management (Section 1666 BGB, Paragraph 2). However, the greater freedom of parents goes hand in hand with greater responsibility. Under certain circumstances, even a bulletproof system can be contrary to duty. For example, an investment in a savings account can be viewed as a violation of the principles of economic asset management, even though it is gilt-edged, if a suitable investment can be found that is equally secure or even itself gilt-edged, but which earns better interest.

Conversely, however, when interpreting the concept of the principles of economic asset management, the literature still gives the security of the investment a major role. There are two standpoints in the literature: The stricter standpoint asserts that the principles of economic asset management require the same level of security for the investment as is the case with the investments, which the law summarizes under the concept of ward security. Only investments would then be permitted that are just as secure as ward security, but which have higher returns. The assumption behind this is that the legislature means with the concept of the principles of economic asset management an abstraction of the concept of ward security, since the latter only includes investment options specifically specified in the law and leaves out comparable investments in terms of security. On the other hand, the more liberal position, which can also be found in case law, allows riskier investments under certain conditions. However, this means first of all that, even from the more liberal point of view, there may be an obligation to ensure a safe investment (possibly one that is completely safe in all practical matters) as long as the circumstances of the individual case do not allow otherwise. Relevant circumstances are in particular the amount of assets, because a higher risk is more likely to be economically viable for medium-sized and larger assets than for smaller assets. There is "a cautious middle ground to strike between security and profit interests - depending on the size of the assets" and, in addition, "differences have to be made [..], depending on whether the investments are short-term or long-term". In addition, where circumstances permit a risky investment, parents must not take as high a risk of speculation on the child's wealth as they would with their own. In principle, they are only allowed to take risks that are unavoidable with the chosen form of investment. Furthermore, they have to reduce the risks of speculative investments through diversification. Investing in precious metals, especially gold, is questionable because, contrary to earlier ideas, it is now considered to be even more speculative than the stock market. The reform did not, as it is mistakenly assumed, mean that parents are now free to act at their own discretion when investing their children's assets and no longer have to take security aspects into account.

Concept of ward security

If the guardian / carer / supervisor has to invest money, this should always be done in a safe way. According to the legal basis in Section 1807 of the German Civil Code, among others,

Bulletproof forms of investment have in common that the assets are protected from total loss due to the debtor's bankruptcy . However, even gilt-edged investments are not protected from price fluctuations, which can occur, especially in the case of bonds with a long remaining term, when market interest rates rise. The ward security also offers no protection against a devaluation of assets due to inflation .

The guardian / caregiver / Coaches also needed for the gilt-edged investment judicial authorization ( § 1810 ), unless it belongs to the group of "liberated" attendant to § 1908i para. 2 BGB, these are the most immediate family members and association and Authority supervisor or the exempt guardian ( § 1852 to § 1857a BGB).

Approval requirement for other facility

The gilt-edged investments are a conservative form of investment that usually does not allow high interest payments to be expected. Therefore, § 1811 BGB allows the legal representative a different type of investment after prior approval of the guardianship court , z. B. in stocks or securities funds (mostly in bond funds).

Without exception, all legal representatives (including the “exempt”) require judicial approval for this. Such approval can be granted if economic asset management is guaranteed.

Fund investments have to be made with "a ward lock" ( § 1809 , § 1816 BGB). This means that the legal representative for dispositions, e.g. B. Sales of securities , again a court approval is required ( § 1812 BGB). But this does not apply to "exempt" legal representatives and not for the assisted self to the extent that legal capacity and not under reservation of consent is.

The Bundesverband Investment und Asset Management (BVI), a lobby association for the fund industry, keeps a list of positive decisions by German courts on investment funds as a form of investment for ward money. Funds and shares, however, do not become completely safe even with the approval according to § 1811 BGB. The investment of the funds is only permitted for the respective individual case.

Exceptions to the permit requirement

In spite of the basic requirement of approval, the legal representative can dispose alone in the following cases ( § 1813 BGB):

  • if a claim is not about money or securities (but e.g. a delivery of goods or a service );
  • if the claim does not exceed 3,000 euros (it is not clear here in the case law whether it is the total claim = account balance or the individual disposal = withdrawal or transfer). Many courts focus on the overall claim;
  • if there is money to be repaid (when due ) that the legal representative has invested himself;
  • when interest payments ( uses ) are made;
  • if only costs of termination or legal prosecution or ancillary services are claimed.

For transfers and withdrawals, some courts rely on the total account balance, i. In other words , if this is now over 3000 euros, every decision, regardless of the amount, must be approved (e.g. OLG Cologne FamRZ 95, 187). Other courts focus on the amount of money moved, not the account balance; according to this, every money movement under 3000 euros is free of approval (LG Saarbrücken FamRZ 1992, 1348; AG Emden FamRZ 1995, 1081).

In the event of difficulties with the bank, it is advisable to obtain a general authorization from the supervisory court in accordance with § 1825 BGB, in the amount that the supervisor must regularly dispose of on a monthly basis.

Exemption regulations

In addition, the legal representative can generally be exempted from the investment restrictions by the supervision court in accordance with § 1817 BGB. However, this is rarely the case in practice (especially because of the 6,000 euro limit in this provision). According to § 1825 BGB, the legal representative can be granted a permanent disposition (e.g. for the regular payment of home costs).

See also

literature

  • Johanns Fiala, Peter Stenger: Investments for wards and guardians . 3. Edition. Bundesanzeiger, 2009, ISBN 3-89817-727-0
  • Hans Klingelhöffer: Asset management in guardianship and estate matters. Law and economy GmbH, ISBN 3-8005-1041-3 .
  • Siegfried Platz: Banking with the supervised . 2nd Edition. Deutscher Sparkassenverlag, 2006, ISBN 978-3-09-306502-6 .
  • Spanl: Asset management by guardians and supervisors . Walhalla U. Praetoria, ISBN 3-8029-7448-4 .
  • Wüstenberg: The supervisor's obligation to authorize withdrawals or transfers of amounts up to 3,000 euros. In: Rpfleger . 2005, 177.

Individual evidence

  1. ↑ Text of the ordinance on the security of Pfandbriefe and related bonds
  2. ↑ Archived copy ( Memento of the original from March 14, 2012 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. P. 21 @1@ 2Template: Webachiv / IABot / www.agt-ev.de
  3. ↑ Thomas Fuchs: Civil Code of August 18, 1896 - § 1642 lexetius.com, accessed on October 1, 2018.
  4. ↑ Huber: Munich Commentary on the BGB , 5th edition 2008, § 1642, Rn. 8th
  5. ↑ a b Thomas Rauscher: Familienrecht , p. 909, margin no. 1043
  6. ↑ Financial Times Deutschland: Mündelsafe funds do not meet the legal criteria ( Memento from July 1, 2009 in the Internet Archive )
  7. ↑ a b OLG Schleswig on investment in funds ( memento of the original from September 26, 2007 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF file; 46 kB) @1@ 2Template: Webachiv / IABot / www.horstdeinert.de
  8. ↑ http://www.hefam.de/urteile/6UF26298.html
  9. ↑ Huber: Munich Commentary on the BGB , 5th edition 2008, § 1642, Rn 7
  10. ↑ Investment of ward money in investment funds ( Memento of the original from May 14, 2011 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. @1@ 2Template: Webachiv / IABot / www.bvi.de

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