Model Approaches to Elder Abuse Prevention and Intervention in Legal Guardianship Cases

1. Model Approaches to Elder Abuse Prevention and Intervention in Legal Guardianship Cases World Congress on Adult Guardianship May 29, 2014 Gabriela Kluge, LLM, Medical Student

2. Introduction Gabriela Kluge, LLM, Medical Student Abuse in financial affairs (Financial Management/Guardian of the Estate) of wards/clients Methods: Qualitative- and quantitative-empirical research methods What sorts of crime cases were committed by Public Guardians etc.?

3. Introduction Gabriela Kluge, LLM, Medical Student Results Numerous criminal offences (e.g.: fraud, theft, misappropriation) are committed on wards/clients by legal guardians etc.

4. Introduction Gabriela Kluge, LLM, Medical Student Failures of transparency, fraud and corruption in the area of nursing and care of the elderly and people with disabilities These legal facts are confirmed by Transparency International Germany e.V.

5. Transparency International Germany/Requests in the area of juridical care: Gabriela Kluge, LLM, Medical Student 1. Supervision and control of juridical care is significantly strengthen, but also to use additional human resources in the area of juridical care.

6. Transparency International Germany/Requests in the area of juridical care: Gabriela Kluge, LLM, Medical Student 2. In all German court districts, there should be installed registries for professional guardian and national databases for comparison of number of cases of compliant and violations by professional guardians and for interaction between all courts of Germany

7. Transparency International Germany/Requests in the area of juridical care: Gabriela Kluge, LLM, Medical Student 3. In the case of court order and juridical investigation of the assets of wards, these main tasks should be separated from the serial juridical care and implemented by the ongoing support management of juridical care. The four eyes principle of guardians and juridical officers should strictly be applied and create a precise documentation through the process of identification.

8. Transparency International Germany/Requests in the area of juridical care: Gabriela Kluge, LLM, Medical Student 4. Guardians should be obliged to the Commitment Law. Therefore the public official would be subjected to the strict criminal rules of giving/taking unfair advantages.

9. Questions Gabriela Kluge, LLM, Medical Student • Is „the system of the German custodianship“ an effective tool? • Do we need to resolve the abuse of financial affairs by custodianship courts in Germany? • Does the German custodianship need a higher compatibility with Art. 12 UN Convention on the Rights of Persons with Disabilities?

10. Questions Gabriela Kluge, LLM, Medical Student Should the German legislative create a new balanced and fair system of support in the social fields? Could lawyers and other court appointed custodians benefit from training in the social fields?

11. Questions Gabriela Kluge, LLM, Medical Student Should it be required that the officials of the custodianship court were trained further in social and medical fields?

12. Contemplation Gabriela Kluge, LLM, Medical Student • Various associations and experts are actively involved in these subjects in Germany. • Some of them are arguing that their own ideas like a form of „Supported Decision-Making“ required by the UN Convention were implemented.

13. Proposals for discussion Gabriela Kluge, LLM, Medical Student Agreement made by persons without power of representation (ohne Vertretungsmacht) Agreement made by persons with separate power of representation by custodianship court (mit gesonderter Ermächtigung des Gerichtes dann gesetzliche Vertretungsmacht)

14. Proposals for discussion Gabriela Kluge, LLM, Medical Student Graded assistance/guardianship according to Swiss model (abgestufte Beistandschaften nach Schweizer Modell) Private mandate/authorization (private Mandatierungen) Only social legal assistance according to British Columbia model – Power of Attorney(nur sozialrechtliche Unterstützung)

15. Proposals for discussion Gabriela Kluge, LLM, Medical Student The German organization of Guardianship Auditors proposes a model „Agreement made by person without power of representation“ (ohne Vertretungsmacht):

16. Proposals for discussion Gabriela Kluge, LLM, Medical Student The so-called „Expression of Intention“ conveys solely the „Declaration of will“ of another without this person himself authorized to represent the other person. The condition is: the will, in the event of a legal „Declaration“ for legal capacity or legal „Right to Act“, be of expected or required as authorized legal correctness and accuracy.

17. Proposals for discussion Gabriela Kluge, LLM, Medical Student The „procedural status“ means that someone asserts the rights by law of another under his own name. He is not a „representative“, but the appropriate rights by law have been transferred. This transfer can be done by a contract or an order or by a judicial decision or legislation. The transfer could also be designed without restriction of the rights of the affected person.

18. Proposals for discussion Gabriela Kluge, LLM, Medical Student That is now the case in that it lies with the responsible proceeding assistant who legally, rightfully, can assert in his own name all rights of the affected person in the procedure without disregarding the rights of the affected person. To the relationship of the parties concerned, the legal assistance has no legal power.

19. Proposals for discussion Gabriela Kluge, LLM, Medical Student Vice versa: Agreement made by person with separate power of representation by custodianship court (mit gesonderter Ermächtigung des Gerichtes dann gesetzliche Vertretungsmacht).

20. Questionnaire responses Hamburg: 8 districts of probate courts per cent Gabriela Kluge, LLM, Medical Student

21. Questionnaire responses Niedersachsen: 66 districts of probate courts per cent Gabriela Kluge, LLM, Medical Student

22. Questionnaire responses Schleswig-Holstein: 26 districts of probate courts per cent Gabriela Kluge, LLM, Medical Student

23. Developing an approach Gabriela Kluge, LLM, Medical Student The German custodianship law is with its few critical elements, such as electoral-law suspension and restriction consent or approval, in line with the convention (requirement).

24. Developing an approach Gabriela Kluge, LLM, Medical Student The practice of custodianship law unfortunately is lagging behind in many areas of the law, also behind the UN Convention on the Rights of Persons with Disabilities. These issues are in urgent need of handling through regular training of judges, juridical officers and also the guardianship auditor.

25. Developing an approach Gabriela Kluge, LLM, Medical Student German law lacks a low-key-system (fehlt ein niederschwelliges System) for support for people with disabilities in exercising their capacity to act outside the legal care or within through flexible rules. This support system that is being demanded from various segments, must be adjusted to the obligatory safety requirements of the convention (law).

26. Gabriela Kluge, LLM, Medical Student Thank you for your Attention!

27. Literature/Literatur: Gabriela Kluge, LLM, Medical Student Transparenzmängel, Betrug und Korruption im Bereich der Pflege und BetreuungSchwachstellenanalyse von TransparencyDeutschlandAuthors: Barbara Stolterfoht, Dr. Anke Martiny1. Auflage 2013, Berlin, Germany

28. Literature/Literatur: Gabriela Kluge, LLM, Medical Student „Das Representation Agreement in British Columbia (Canada) – ein Modell für Deutschland? in Bt/Prax 6/2013 Authors: Prof.Dr.Lipp/Katharina Baniewski/Benjamin Dankert/Rebecca Newell „Reform des Erwachsenenschutzes in der Schweiz“ Authors: Dr. Walter Boente

29. Literature/Literatur: Gabriela Kluge, LLM, Medical Student „Die UN-Behindertenrechtskonvention und das Betreuungsrecht“, in BtPrax „Assistenz vor Stellvertretung“, in BtPrax Author: Uwe Harm, Dipl.-GuardianshipAuditor in Bad Segeberg, Schleswig-Holstein, Germany