Tasks in legal support
The aim of the care law that has been in effect since 1992 is to interfere as little as possible with the self-determination of those affected. Supervisors may only be appointed for those tasks in which supervision is actually required. The civil code does not prescribe any specific tasks. It is incumbent on the judge, based on the life situation and the needs of the person concerned, to find out and determine the task groups according to the principle of necessity. Within these areas of responsibility, the legal supervisor has the position of a legal representative and supports the person concerned in the organization of help and represents his interests.
In practice, the following areas of responsibility are most frequently assigned:
- Asset Management
The supervisor with the task of asset management has to regulate the financial affairs of the person supervised. In the case of wealthy people, this primarily means managing their assets in the form of savings, securities or fixed assets. Sometimes real estate also needs to be managed.
In the case of non-wealthy and often indebted people, the focus is on regulating debt and securing livelihoods. In consultation with the person concerned, the carer will often take over the account management of the person being cared for to ensure that the current obligations such as rent, electricity, gas and insurance can be paid. To regulate the debts, the liabilities of the person being looked after must be recorded and, if possible, proposals for regulation made to the creditors. Often, however, the person being cared for is no longer able to pay the agreed installments without endangering their livelihood due to the amount of their debts. In these cases, the supervisor will turn on a recognized debt counseling center, which will prepare the way into the judicial insolvency procedure for the person being looked after.
The establishment of legal support with the task of asset management does not automatically lead to the legal incapacity of the person under legal care. Unfortunately, this is repeatedly misunderstood in everyday life by a wide variety of people and institutions. The person being cared for can continue to carry out legally effective legal transactions, i.e. conclude contracts, even if legal support is set up with the asset management task group. Legal incapacity for legal care as well as any other adult participant in legal transactions in Germany only exists if this person is in a state of pathological disruption of mental activity that precludes free will formation and this state is not temporary.
In this case, in order to avert a significant risk to the assets of the person being cared for, in addition to the task of asset management, the guardianship court orders a reservation of consent for property matters (Section 1903 BGB). The person concerned then needs the consent of the legal guardian to make a declaration of intent, i.e. to conclude a contract, among other things. If the person being cared for concludes contracts that damage their property without the knowledge of the legal guardian, the legal guardian can revoke these contracts.
- Health Care
The tasks of the legal supervisor in the field of health care can include various activities such as ensuring medical care, organizing an outpatient care service, clarifying health insurance or initiating and agreeing to medical measures.
As long as the person being cared for understands the nature and scope of a medical measure and is capable of giving consent, a medical examination or treatment can be approved. Only if the person concerned no longer has a natural ability to see things must the legal guardian, after adequate medical information, decide whether or not to consent to the intended medical measure. In this case, if the person being cared for has not drawn up a living will, the legal guardian must determine the presumed will and treatment requests of the person being cared for and make a decision on this basis. This means that the legal guardian deals with the question of how the person being cared for would decide in this situation.
- Legal, Application and Official Matters
This area of responsibility is very often assigned to the legal guardian by the guardianship courts so that he can make the necessary applications for the guardian at the job center, the social welfare institutions, the employment agency and the pension insurances, or can support the person under care in submitting the necessary applications put. In the event of negative decisions by the authorities, it is important to enforce the claims of the people being looked after.
In the case of people of non-German origin, the main priority is to secure the right of residence.
- Housing Matters
The apartment as the center of life of the legally repentant person enjoys a special need for protection. But despite the extensive duties and powers of the supervisor with the task of housing matters, they do not entitle him to enter the apartment against the will of the person concerned. The right to the inviolability of the home (Art. 13 GG) is a right protected by the constitution, which can only be interfered with if there is a legal basis for authorization and court approval. The court will only grant approval if there is an emergency, i.e. the carer has concrete indications that the person being cared for is in a life-threatening condition in his home. The apartment can also be entered against the will of the person concerned with a court order in order to place the person concerned in a psychiatric clinic.
Within the scope of this task group, we support you in all matters relating to your living situation. Perhaps you have to rent another apartment due to health problems or the apartment has already been terminated due to rental debts. As part of the legal support, I would be happy to support you with the acquisition of new living space and with the organization of your move.
When settling rent debts or averting an eviction suit, we work closely with the responsible authorities to secure your living space and avoid the threat of homelessness.
When moving to a care facility, the existing tenancy must be terminated and the apartment dissolved. Here, too, the following applies: If the person being looked after can no longer terminate the rental contract themselves, the supervisor must act on their behalf. The termination of a tenancy by the supervisor, however, requires the consent of the supervisory court (Section 1907 BGB). This standard of the German Civil Code once again expresses the special protection needs of the apartment as the center of life of the person being looked after.
- Determination of Residence
The right to determine the place of residence is transferred to the legal representative by the court if it has to be decided where the person being cared for will be staying in the future. In the case of elderly people in particular, a suitable form of accommodation must often be found after a stay in a clinic, which on the one hand meets the illness-related restrictions and on the other hand the individual wishes of the person concerned. The support of the legal guardian is particularly important when the person being looked after can no longer make this decision on their own.
If the legal supervisor has been assigned the task of health care in addition to the right to determine the place of residence, he can accommodate the person being cared for in a closed facility in order to avert significant damage to health, even against his will. Such compulsory placement is only possible within a very narrow legal framework and only with a decision by the care court.
- Postal Affairs
This group of tasks authorizes the legal supervisor to open and hold the mail of the person being looked after. This range of tasks is inevitable if, due to a pathological limitation of the person concerned, important mail items are no longer opened or forwarded and the legal guardian does not gain knowledge of the mail received.
Even if the person being cared for is in a hospital, the postal affairs department ensures that the incoming mail can be processed for the person concerned.