There are advocates who urge the United States to repeal all laws on guardianship or conservatorship of adults. The common reply is “what would you replace guardianship with?” Germany replaced guardianship as we know it, almost 30 years ago. This article by Professor Dagmar Brosey explains the German law, and ongoing changes to the law that and practices that have replaced guardianship as most of the world knows it with a system that protects the rights and dignity of adults with diminished capacity.
- David Godfrey, J.D,
Senior Attorney,
ABA Commission on Law and Aging
In Germany there are two systems in the German Civil Code (BGB) for the legal support and protection of adults. One is the statutory system which is accompanied by a court appointment; the other is the enduring power of attorney. Both systems use the instrument of legal representation under the principles of necessity and self-determination including the obligation of taking rights, will and preferences into account. There are also other measures available to support adults in the absence of a legal representative in the field of social law or informal arrangements who are prior and exclude a statuary measure. The measures in Germany regarding support in exercising legal capacity don´t affect the supported person’s legal or mental capacity. It is assumed that adults have legal or mental capacity and that they can decide and act legally effective even if they need support or have a legal representative.
The abolition of determinations of incapacitation and guardianship with the introduction of the Law of “Betreuung” in 1992 had already brought the right of self-determination of concerned adults with disabilities or disease into practice. Through the Convention on the Rights of Persons with Disabilities or CRPD and the participation of persons with disabilities, quality and implementation deficits in the Law of “Betreuung” have been scientifically investigated. This has made clear that the right of self-determination must be strengthened and must be expressed more clearly in the wording of the current law. This article presents an overview of the law reform which will come into force January 1st 2023.
In 1992, a strong paradigm shift was already introduced in the German Civil Code, establishing the Law of “Betreuung”. The Law of “Betreuung” is federal law. I am using the German term because all attempts to translate this term led to misunderstandings, since the law has deliberately created a new term for a new regime. “Betreuung” can be translated with the term support or care in legal matters. The person who is appointed by the specialized court is called “Betreuer”.
By abolishing the term and the regime of adult guardianship (Vormundschaft) the 1992 law-reform focused on the principle of the adult’s self-determination. Before adult guardianship was accompanied by a high level of interference in the rights of adults. A court procedure went together with the judicial determination denying or restricting the adult’s legal capacity for the future and the appointment of a legal guardian who functioned as a legal representative in all areas (plenary guardianship). Also available was a less restrictive regime, the curatorship (Pflegschaft) with limited areas.
The 1992 law-reform created a new system not only with a new name, but above all new principles. The important legal principles of “Betreuung” have included the self-determination of the person concerned, necessity, the principle of subsidiarity, but also the principle of protection, which in turn respects and incorporates the aforementioned principles. A single-stage judicial procedure was introduced, in which the will, not only the current wishes, but also former will and wishes, and presumed will of the adults concerned are to be taken into account. The principle of necessity serves to adjust the scope of support to the concrete needs; hence the measure must be tailored. The law was changed to a considerable degree.
The appointment of a “Betreuer” has no effect on the person's legal capacity to act. “Betreuung” therefore basically only provides information about the extent of the person's need for support, but not with regard to its intensity. However, separate, and thus independent of the appointment of a “Betreuer”, there are regulations on the legal incapacity to act in specific sub-areas, such as the incapacity to contract, the capacity to consent , these always refer to an individual case and the associated situation.
Since 1992, the Law of “Betreuung” has been subject to several amending acts concerning German Civil Code and procedural law (FamFG), but the law on remuneration (VBVG) and the tasks of the local authorities of “Betreuung” (BtBG) have also been reformed in the meantime. Likewise, the case law of the Federal Constitutional Court and the Federal Court of Justice on compulsory medical treatment resulted in changes to the law. In particular, the ratification of the CRPD, which came into force in 2009, had an impact on the Law of “Betreuung” and was an important driver for the current reform.
In 2015, the Federal Ministry of Justice and Consumer Protection commissioned two research projects, also with regard to the CRPD Committee’s criticism concerning Art. 12 CRPD (2015) and the German Law of “Betreuung”. The research project was concerned with questions of how the Law of “Betreuung” is implemented; what the guiding principles for quality standards are; whether structural quality deficits exist, and if so, what the possible causes for these deficits are.
In 2015, court appointed “Betreuungen” were registered for approx. 1.25 million persons, which is equivalent to about 1.8 % of the population above the age of 18. Based on the research results and statistical outline data, it can be assumed that approx. 590,100 of these legal representations are performed by professionals and approx. 658,800 by volunteers. On a professional level, “Betreuer” are performed by approx. 13,100 independent professional “Betreuer”; approx. 2,800 by “Betreuer” from state-approved associations. On a voluntary basis, “Betreuer” are performed by approx. 537,300 family members and approx. 48,600 by external volunteer “Betreuer”.
On June 20th, 2018 the Federal Ministry of Justice and Consumer Protection began the reform process titled “Self-determination and quality in the Law of Betreuung”, which also involved self-advocates. In four specialist working groups, interdisciplinary work was carried out between September 2019 and November 2020.
The new law aims to strengthen the right of self-determination and to further promote the paradigm shift in the practice of “Betreuung” towards supported decision making and support in exercising legal capacity in accordance with Article 12 CRPD. To this end, existing legal principles on the observance of the wishes of the person concerned are specified for “Betreuer”, but also for the courts, and it is clarified that these legal principles are both mandatory for “Betreuer” and the courts regarding judicial supervision. The principle of necessity is also further sharpened. Overall, the substantive Law of “Betreuung” was completely restructured. The Organization Act replaces the existing Authorities Act. Here, requirements for professional “Betreuer” are regulated, which include a registration procedure including an expertise certificate, measures to avoid “Betreuung” and mandatory support services to accompany volunteer “Betreuer” are provided for. Another innovation is the regulation on a mutual legal right of representation for spouses in emergencies cases. I will briefly present some important changes.
The court of “Betreuung” must consistently ascertain and consider the wishes of the person concerned with regard to whether and how “Betreuung” is to be provided and the selection of the “Betreuer” in the appointment procedure; this is intended to strengthen the procedural position of the person concerned overall.
The concerned adult has the right to refuse a court appointed “Betreuung”. The law defines that a Betreuer may not be appointed against the free will of an adult. The free will is a legal term and related to the adult concerned who has no free will regarding the necessity of a Betreuer if she/he cannot understand the nature and consequences of her/his decision and/or when she/he cannot use or weigh the relevant information. The new law stays with the 2005 introduced threshold. This decision does not deny his/her legal or mental capacity for the future.
The court must review this kind of appointment at least once every two years.
Section 1815 of the German Civil Code-new also introduces changes to the scope of support. The scope of the “Betreuer's” duties will consist of one or more areas of responsibility. Appointment of a “Betreuer” in all matters (plenary) will be inadmissible in future, even this had been an exception, in 13% a plenary “Betreuung” had been appointed. Moreover, the principle of necessity binds the judge to a tailored measure rather than prescribing only a “Betreuung” of the estate or a “Betreuung” of the person. The court must examine the scope of support including the instrument of representation in a person-centered manner.
In the selection of the Betreuer, the wishes of the person concerned will be taken into account to a greater extent than before in accordance, in that even a negative wish will be binding.
Concerning the appointment of “Betreuer” the law offers one exception since 1992 that remains in the law. In addition to the appointment “Betreuer”, the law allows a special instrument which limits the adult’s legal capacity to act in a limited area. It is called a reservation of consent (Einwilligungsvorbehalt). The law requires a substantial danger for the person’s estate or the person as a threshold. The new law clarifies that this instrument may not be appointed against the free will of the adult. In general, the “Betreuer” must follow the will and the wishes of the person concerned and must obtain his/her consent. The adult has a right of consent, with the only exception of her/his legal action causing substantial danger while he/she is not able to recognize the danger.
The appointment of a “Betreuer” still goes along with the instrument of representation limited to the scope of task. Representation is used as a tool, which may be used if necessary. The legal representative must by law follow the principle of necessity and support the adult to act legally by him/herself. Section 1821 and 1823 German Civil Code-new clarify these principles. If it is necessary to act legally on behalf of the adult, the “Betreuer” must follow the will and the wishes of the adult. The functions of legal representation may only be used if it is necessary in a specific situation. The principle of necessity provides a guideline for the court but also a major guideline for the “Betreuer”, guaranteeing the precedence of supported decision-making in the law. Legal representation can be needed to support the person to exercise her/his legal capacity and put their wishes and preference into legal actions.
After section 1821 German Civil Code-new the “Betreuer” carries out all activities that are necessary to legally manage the affairs of the person. He supports the person in legally dealing with his own affairs and only makes use of his power of representation pursuant to Section 1823 if this is necessary.
The adult concerned is still presumed to have legal and mental capacity. The Betreuer functions primarily as a supporter and must support the person in exercising her/his legal capacity promoting and respecting to rights, will and preferences. The will and wishes of the person are always binding as well as advanced directives. As the only exception the “Betreuer” does not have to follow the wishes of the person, insofar the person for or his assets would be significantly endangered by this, and the person does not recognize this risk due to his illness or disability or cannot act according to this insight. If the “Betreuer” cannot determine the wishes of the person or if he is not allowed to comply with, he must determine the presumed will of the supervised person based on concrete evidence. As consequence every decision which is made by the “Betreuer” has to be based on the wishes and preferences or if there is a conflict between the persons rights, will and preferences the “Betreuer” is obliged to the best interpretation of will. The Betreuer has to decide how the person would decide. However, the new law clarifies that the free will is always binding and the Betreuer must give effect to this.
The legal reform reorganizes the law of “Betreuung” for adults and guardianship law for minors. The reform is scientifically based on two major research projects, many of whose recommendations have been implemented. The reform is also characterized by the broad and intensive participation of various stakeholders, including professional associations, the judiciary, the states, the social services departments, academics and people with experience. The reform has met with broad approval and thus provides the basis for the paradigm shift already initiated in 1992 to guarantee the right of self-determination of people with disabilities and considerable need for support exercising their legal capacity.
