Introduction
In Germany, many people mistakenly believe that in an emergency, their spouse or close relatives, such as their children, can automatically represent them legally. They assume there is a so-called legal and automatic representation in place. However, this is a misconception, as Germany does not have such an automatic legal representation for guardianship. For example, if a spouse or other relative has an accident and is admitted to the hospital, a treating doctor cannot provide information to the next of kin without violating confidentiality laws, as they are bound by doctor-patient confidentiality.
Doctor’s Confidentiality Without a Power of Attorney
Doctors are only permitted to provide information to certain family members if a valid power of attorney is in place. If such a document does not exist, the responsible doctor must initiate a court-ordered guardianship. This appointed guardian will then make decisions about surgeries, home admissions, and financial matters on behalf of the individual.
Who Can Become a Guardian?
While a family member or spouse may be appointed as a guardian, there is no automatic assignment. In cases where family disputes exist, a judge can appoint an external guardian. In these situations, spouses or other relatives do not have the right to participate in the guardianship process or review case files, unless they file a corresponding application with the court, which may or may not be granted.
The Importance of a Power of Attorney
A power of attorney ensures that an individual’s wishes and interests are upheld in case of incapacitation. Without this document, the court will appoint a guardian, who may not necessarily be a family member.
How is Guardianship Law Legally Regulated?
The guardianship law in Germany was established in 1992 and is part of family law, regulated in sections 1896 and following of the German Civil Code (BGB). It replaced older legal concepts such as guardianship for adults. Since guardianship affects fundamental rights, all decisions must be proportionate and in the best interest of the person under care.
When Does Guardianship Law Apply?
Guardianship law applies when an adult, due to illness, disability, or after an accident, can no longer manage their affairs. Support is provided under guardianship law when, according to section 1896(1) of the BGB, a mental illness or a physical, intellectual, or emotional disability prevents a person from managing their own affairs, either entirely or partially.
Which Conditions Lead to the Application of Guardianship Law?
Guardianship law outlines specific conditions, including illnesses and disabilities, that necessitate the appointment of a guardian. These include:
- Mental Illnesses: This category includes psychological conditions without physical causes, as well as disorders resulting from brain injuries, such as severe addiction, neuroses, or personality disorders.
- Intellectual Disabilities: Congenital or acquired cognitive impairments of varying severity can result in the need for guardianship.
- Physical Disabilities: Prolonged physical impairments that prevent a person from managing their own affairs can also require guardianship.
How is a Guardianship Initiated?
A guardianship is typically initiated through an application to the guardianship court. However, the court can also act on its own if third parties raise concerns and sufficient evidence suggests that guardianship is needed. Before appointing a guardian, the court must personally hear the individual concerned and assess their situation, often through a home visit by the judge.
Selection and Responsibilities of a Guardian
In most cases, family members are chosen to serve as guardians. However, if no suitable family member is available, professional or volunteer guardians may be appointed. The guardian is responsible for health care, financial management, and other personal matters of the individual.
Duties of a Guardian
A guardian’s responsibilities vary by case and can cover various aspects of life, including health care, financial matters, and living arrangements. The guardian must also report regularly to the guardianship court.
What Alternatives Are There to Legal Guardianship?
To avoid court-ordered guardianship, individuals can prepare in advance by creating the following legal documents:
- Guardianship Directive: This allows individuals to specify who they wish to act as their guardian if the need arises. While the court will still make the final decision, it must take the directive into account.
- Living Will (Patient Directive): This document outlines a person’s medical treatment preferences in the event they can no longer make decisions themselves.
- Power of Attorney: Through a power of attorney, a person can designate someone to manage specific tasks, such as financial or health matters, in the event of incapacitation.