Guardianship authority

An affected person can apply to the guardianship court for the appointment of a guardian for themselves. Anyone else can suggest the appointment of a guardian. After the application or suggestion for the appointment of a guardian, the court investigates the matter. It appoints an expert, and possibly also a procedural guardian, who is to represent the interests of the affected person in the proceedings.

The court usually seeks support for fact-finding from the guardianship office. This office investigates on-site, i.e., with the affected person and in the social environment, to determine whether it is necessary to appoint a guardian or whether other assistance is sufficient.

If no other sufficient assistance is available, the guardianship office proposes a suitable person as a guardian and recommends to the court the areas of responsibility the guardian should be appointed for.

After a hearing, which usually takes place at the affected person's location, the court decides,

• whether a guardian will be appointed,

• which tasks will be assigned,

• who will be appointed as the guardian

• and when it will be reviewed whether the appointment of a guardian is still necessary. This must occur after a maximum of seven years.

You can find this information further above on this page.

When selecting the guardian, the wishes of the person concerned should be taken into account.

About two-thirds of all guardianships are carried out on a voluntary basis. Most of these are family members. However, any other suitable adult can take on the role of a guardian.

If a voluntary guardian is not available or professional action is required, a professional guardian or a guardian from an association can be appointed.

If a legal guardian is appointed, the following applies:
The guardian only receives representation rights for the areas that the affected person can no longer manage independently.

This means:
Everything that an affected person can still manage on their own cannot be part of the guardian's responsibilities.

The responsibilities of the guardian are therefore limited to what is necessary.

• The guardian must handle the affairs of the affected person in a way that aligns with their well-being.

• This includes ensuring that the affected person can, within their abilities, shape their life according to their own wishes and ideas.

• The guardian must comply with the wishes of the affected person, provided that doing so does not harm their well-being and is reasonable for the guardian.

• This also applies to wishes expressed by the affected person before the appointment of a guardian. 

• The guardian must contribute to utilizing opportunities to eliminate, improve, prevent the worsening of, or mitigate the consequences of the affected person's illness or disability. 

• Before handling significant matters, the guardian will discuss these with the affected person.

Guardianship is a legal aid. The task of the guardian is to legally represent the affected person.

Guardianship is also a social aid because it requires a personal relationship, a trusting bond between the affected person and the guardian, and: the actions of the guardian should align with the personal wishes and life concepts of the affected person.

In the Oberbergischer Kreis, around 70 professional caregivers are currently active.

Professional caregivers carry out legal caregiving within the scope of their professional activities. These are usually people with training in social professions (social work, social pedagogy), but also lawyers, individuals from nursing professions, or from the commercial sector.

Among the professional caregivers in the Oberbergischer Kreis, many different professional groups are represented. In addition to personal and social competence, the decisive factor for suitability as a professional caregiver is primarily the specialized knowledge that can be used for caregiving. To acquire this knowledge, prospective professional caregivers in the Oberbergischer Kreis generally undergo a suitability assessment process: 

• Written application with a CV, police clearance certificate, and credit report 

• Interviews with the caregiving authority 

• Participation in an appropriate "beginner's course" for professional caregivers, such as the "Basic Course in Caregiving Law" offered by the Academy of Healthcare Economics and Seniors of the Oberbergischer Kreis (AGeWiS)

• Practical support during the assumption of initial voluntary caregiving tasks

This elaborate, intensive quality assurance process in caregiving has helped ensure that cases of abuse by professional caregivers, as dramatically portrayed in the media as "scams" or "criminal fraud," have so far not been identified in the Oberbergischer Kreis!

The suitability assessment process is a prerequisite for being proposed by the caregiving authority to the district court as a suitable professional caregiver in the Oberbergischer Kreis.

The caregiving court oversees the entire activity of the caregiver.

The caregiver must report annually and, if responsible for financial matters, provide an accounting.

If a father, mother, spouse, or child is appointed as the caregiver, they are exempt from the annual accounting requirement.

In the procedure for appointing a guardian:

• court costs, 

• costs for a procedural guardian, 

• costs of an expert.

In ongoing guardianship:

• the expense allowance for the guardian

• or - if a professional guardian is appointed - the remuneration for this person.

For the remuneration of professional guardianship activities, flat hourly rates have applied since July 1, 2005. The amount of remuneration depends on

• the qualification of the professional guardian.

• how long the guardianship has already been in place.

• whether the person being cared for lives in a facility, e.g., a nursing home, or in their own home.

• whether the person being cared for is destitute or not.

The hourly rate for the remuneration of professional guardians ranges between
€27.00 and €44.00.

Depending on the living and financial situation and the duration of the guardianship, the professional guardian receives between 2.0 and 8.5 hours of flat-rate remuneration per month - regardless of how extensive or minimal the actual workload is.

In principle, the person being cared for bears the costs of caregiving themselves.

If the cared-for person is indigent, the state treasury assumes the costs.

The basics of guardianship law are clearly presented in the "Online Lexicon of Guardianship Law".

The most important foundations:

§ 1896 BGB

(1) If an adult is unable to handle their affairs entirely or partially due to a mental illness or a physical, mental, or emotional disability, the guardianship court shall appoint a guardian for them upon their request or ex officio. The request may also be made by someone who is incapable of conducting legal transactions. If the adult is unable to handle their affairs due to a physical disability, a guardian may only be appointed upon the adult’s request, unless they are unable to express their will.

(1a) A guardian may not be appointed against the free will of the adult.

§ 1901 BGB

(1) Guardianship includes all activities required to legally handle the affairs of the ward according to the following regulations.

(2) The guardian must handle the ward’s affairs in a manner that corresponds to their well-being. The ward’s well-being also includes the ability to shape their life according to their own wishes and ideas within their capabilities.

(3) The guardian must comply with the ward’s wishes as long as they do not conflict with the ward’s well-being and are reasonable for the guardian. This also applies to wishes expressed by the ward before the appointment of the guardian, unless the ward clearly no longer adheres to those wishes. Before handling significant matters, the guardian must discuss them with the ward, provided this does not conflict with the ward’s well-being.

(4) Within their scope of duties, the guardian must contribute to utilizing opportunities to eliminate, improve, prevent the worsening of, or mitigate the effects of the ward’s illness or disability. If the guardianship is conducted professionally, the guardian must create a guardianship plan at the court’s order at the beginning of the guardianship in suitable cases. The guardianship plan must outline the goals of the guardianship and the measures to be taken to achieve them.

(5) If the guardian becomes aware of circumstances that may allow for the termination of the guardianship, they must inform the guardianship court. The same applies to circumstances that may allow for the limitation of the scope of duties, its expansion, the appointment of another guardian, or the imposition of a requirement for prior consent (§ 1903).