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New Law: Betreuung – „legal custodianship“:

Choice and Control in my life Round table Discussion on legal Capacity legislation Belfast, 26 th November. Betreuungsgesetz of 1992 – the German Example for a Guardianship-Legislation on Legal Capacity and Decision Making. New Law: Betreuung – „legal custodianship“:

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New Law: Betreuung – „legal custodianship“:

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  1. Choice and Control in my lifeRound table Discussion on legal Capacity legislationBelfast, 26 th November Betreuungsgesetz of 1992 – the German Example for a Guardianship-Legislation on Legal Capacity and Decision Making

  2. New Law: Betreuung – „legal custodianship“: • One flexible measure to provide for tailor-made legal support and representation, with regard of the principle of necessity and respect for the right of self-determination

  3. Betreuung – § 1896 Civil Code (1) If a person of full age, by reason of a mental illness or a physical, mental or psychological handicap, cannot in whole or in part take care of his affairs, the court (Betreuungsgericht), on his application or of its own motion, appoints a custodian (Betreuer) for him. The application may also be made by a person incapable of contracting. To the extent that the person of full age cannot take care of his affairs by reason of a physical handicap, the custodian may be appointed only on the application of the person of full age, unless the person is unable to make his will known.

  4. Betreuung - § 1896 sec. 2 Civil Code A Betreuer may be appointed only for tasks in which the Betreuung is necessary. The Betreuung is not necessary to the extent that the affairs of a person of full age may be taken care of by an authorized person (power of attorney)……or by any other form of assistance without legal representation. • „principle of necessity and subsidiarity“

  5. Betreuung – Legal Structure (1) • There is no formal incapacitation – the person concerned principally can take legal decisions personally – as long as he/she is able to do so • However, the Betreuer has the right to legally represent the person concerned, within his scope of tasks, § 1902 BGB • Practically, both the disabled person and the Betreuer are entitled to take legally binding decisions • The Betreuer has to respect the Right of Self-Determination of the person concerned – before he takes decisions as representative, he is obliged to try to find out the wishes of the person concerned – preference for supported decision-making, § 1901 BGB

  6. Betreuung – Legal structure The reservation of consent - § 1903 Civil Code „To the extent that this is necessary to prevent a substantial danger for the person or the property of the person under Betreuung, the Betreuungsgericht orders that the person under Betreuung requires the consent of the Betreuer for a decision that relates to the scope of tasks of the Betreuer“. • Limitation of legal capacity in order to protect, applicated in about 5 % of all cases of Betreuung

  7. Betreuung – Legal Structure Personal Rights not limited by Betreuung: • The Right to marry • The right to make a will • The Right to vote, • with the exception of those few cases (about 1 %) of „Betreuung for all affairs of the person“ • This provision of § 13 BWahlG (Federal Election Law) should be challenged with regard to Art. 29 CRPD

  8. Who is chosen as Betreuer? • Preference is given to the choice of the disabled person, § 1897 sec. 1 Civil Code • Second preference for family Members, other personal relationships or other volunteers, § 1897 sec. 4, 5 Civil Code • If necessary, professional Betreuers (independent Betreuers, employees of „Betreuungsvereine“ (=associations tutlaires) or the public authority for Betreuung may be appointed, §

  9. Betreuung – Legal structure For the protection of the disabled person, the Betreuer needs additional approval of the Court for a number of important decisions: • Decisions of the Betreuer about medical treatment with high risks for the patient, § 1904 Civil Code • The consent to a sterilization of a disabled person who is not able to understand the measure and decide personally, § 1905 • Detention in order to protect the person from commiting suicide or to faciltate a necessary treatment, § 1906 Civil Code • Other measures which deprive the person of its personal freedom to move in „open“ facilities such as group homes, § 1906 sec. 4 Civil Code, • The termination of a housing contract, § 1907 Civil Code

  10. Control of the Betreuers • The Court has to control the Betreuers and intervene when necessary by specific orders, § 1837 Civil Code • Each Betreuer has to write a report once per year, § 1840 Civil Code • Requirements for reporting by family members are lower, §§ 1854 sec. 2, § 1857a Civil Code • Actual control of Betreuers is not very intense!

  11. Betreuung - Procedural Steps (1) (FamFG – Familienverfahrensgesetz) • The Guardianship Court must investigate, as soon as it gets notice by anybody about a person in need, § 26 FamFG • The person concerned is informed about the procedure, § 278 sec. 2 FamFG • Some Courts order a Report from the Local Authority for Betreuung, about the Life Situation of the person concerned and the necessity of Betreuung, § 8 BtBG – BetreuungsbehördenG • Personal Interview of the person concerned by the Judge, usually at the permanent residence of the person, not in the Court, § 278 sec. 1 FamFG • If necessary, nomination of a Supporter for the Procedure („Curator“), § 276 FamFG

  12. Betreuung – important principle for access to justice: • Anybody who is affected by a procedure of Betreuung has – no matter about his actual capabilty – legal capacity to act in the procedure, § 275 FamFG • Any declarations, applications or complaints of the disabled person have to be considered and dealt with by the „Betreuungsgericht“ as legally valid interventions

  13. Betreuung – Procedural Steps (2) • Experts‘ Certificate about the necessity of Betreuung, including the affairs to be covered (usually by a Doctor for Psychiatry), § 280 FamFG • The Local Authority, Spouses, Parents, Children who are involved, or anybody nominated by the person concerned are offered to tell the Court their opinions, § 279 FamFG • „Final Conversation“ of the Judge (§ 278 sec. 2 FamFG) with the person concerned, explaining • The results of the procedure • The scope of tasks for Betreuung • Who is to be appointed as „Betreuer“

  14. Discussion on Art. 12 CRPD in Germany The disability community is calling for: • Research about the practical implementation of Betreuung in Germany: Are the principles of necessity and subsidiarity recognized sufficiently in light of 1,3 million cases of Betreuung? • Create and try out structures of assistance for supported decision-making to avoid court measures of Betreuung • Legal investigation about crucial regulations such as • §§ 104, 105 Civil Code (Inability to contract) • § 1902 Civil Code (legal representation by the Betreuer) • § 1903 Civil Code (reservation of consent) • § 1905 Civil Code (sterilization) • § 1906 Civil Code (detention) • § 13 BWahlG (right to vote)

  15. Development of the law on Betreuung with regard to Art. 12 CRPD • Draft bill to provide for an improved role of the local authority for Betreuung before and during court procedures: The courts shall give notice to the local authority about each procedure of Betreuung and call for an investigation whether the appointment of a Betreuer is necessary. Secondly, the local authority shall be obliged to provide information and counseling prior to a court procedure of Betreuung. • Draft bill to specify legal requirements that entitle the court to allow a Betreuer to agree to a forced treatment of his ward. New legislation is neccessary after rulings of the german constitutional court stating that there is no sufficient legal basis to allow for substitute decision-making to consnet to forced medical treatment of a patient.

  16. Betreuung – Implementation – Developments since 1992 • Guardianships/Curatorships 1991 : ca. 450.000 • Betreuung 31.12.1995: 624.695 • Betreuung 31.12.2002: 1.047.406 • Betreuung 31.12.2009: 1.291.410 • 15,79 cases per 1000 inhabitants • Annual Costs for expenses and salaries of professional Betreuers: 2004 : 434.000.000 Euro 2007 : 602.000.000 Euro 2008 : 640.000.000 Euro

  17. Betreuung (2009) Voluntary ./. Professional New Cases of Betreuung : about 245.000/year Volunteers: Family Members 59,49 % Other Volunteers 5,49 % 64,98 % Professionals: Independant Professionals 28,81 % Non-Profit Associations for Betreuung 5,79 % Local Authority for Betreuung 0,42 % 35,02 %

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