Legal guardianship - apply for appointment

Initiation of the procedure

The person concerned can apply for guardianship themselves. In all other cases, the guardianship court decides ex officio.

Note: Third parties such as family members or neighbours can submit an informal application for legal guardianship to the guardianship court.

Position of the person concerned

The person concerned has the capacity to initiate proceedings regardless of their legal capacity. They can submit applications themselves and lodge appeals against court decisions. The guardianship court informs them about the possible course of the proceedings. It shall inform the person concerned of all decisions.

If necessary to safeguard the interests of the person concerned, the guardianship court will appoint a guardian ad litem. This guardian is to support the person concerned in the proceedings. The guardian ad litem explains, for example, the individual steps of the proceedings or the content and meaning of the notifications from the guardianship court. He or she also informs the court of the wishes of the person concerned.

Note: The court can, for example, appoint a guardian ad litem:

• Persons of trust from the family, friends and acquaintances
• Employees of care associations
• Social workers and social workers
• Lawyers and solicitors

As a rule, the guardianship court must hear the person concerned in person before making certain decisions and gain a personal impression, for example when

• the initial appointment of a carer,
• the extension of the scope of the guardianship or
• the removal of the carer against the wishes of the person concerned.

The purpose of hearing the person concerned in person is to ensure that the judge is sufficiently informed about the person concerned and their situation.

Note: A personal hearing is only omitted in exceptional cases.

The guardianship court should gain a personal impression in the usual environment of the person concerned. The person may also request this. However, they can also object to a visit by a judge. The hearing will then take place on the official premises.

If a guardian ad litem has been appointed, the personal hearing will usually take place in their presence. At the request of the person concerned, a trusted person may also attend. The court may authorise other persons to attend, but not against the wishes of the person concerned. However, the court may allow court-appointed experts to attend the hearing against the wishes of the person concerned.

Involvement of third parties

The court must hear the guardianship authority before ordering guardianship or a reservation of consent.

It can also close Relatives participateif this is in the interests of the person concerned.

Note: The guardianship authority is the local authority at the city and district level. Their tasks are regulated in more detail in the Betreuungsorganisationsgesetz (BtOG).

Finally, at the request of the person concerned, the court must also hear a person close to them if this is possible without significant delay.

Expert opinion

Before a guardianship or a reservation of consent is ordered, the guardianship court must generally obtain an expert opinion. The expert report provides information about the illness or disability, the need for support and the expected duration of the need for assistance. The expert should be a doctor of psychiatry or have experience in the field of psychiatry.

Note: In certain cases, a medical certificate is sufficient, particularly if the person concerned applies for care themselves and waives the right to obtain an expert opinion.

The experts must examine and question the person concerned in person. The expert opinion must contain statements on the following points:

• Clinical picture
• Development of the illness
• examinations carried out
• physical and mental condition of the person concerned
• Need for support
• Duration of the measure

Decision

The competent guardianship court decides after conducting the necessary hearings and investigations. If the court comes to the conclusion that the requirements for ordering legal guardianship are met, it appoints the guardian and determines their scope of duties. At the same time, it determines the date on which it must decide on the cancellation or extension of the appointment at the latest.

The guardianship court shall verbally appoint the guardian, inform him or her of the tasks associated with the guardianship and draw attention to counselling or support services. The carer receives a certificate of appointment. This certificate serves as proof of authorisation to represent the person. It shows the areas of responsibility for which the carer is authorised. If the guardianship ends, the guardian must return the certificate to the guardianship court.

Temporary order

The appointment of a guardian usually requires extensive investigative work by the court and takes a certain amount of time Time. If a quick decision is required, the court can, in a simplified procedure by means of a temporary order

• appoint a temporary carer,
• order a temporary reservation of consent,
• dismiss a carer, or
• provisionally extend the scope of the guardian's duties.

However, such an emergency measure is only permitted under certain conditions and may under no circumstances remain in place for longer than one year. In particularly urgent cases, the guardianship court can take the necessary measures itself. However, this is only possible if no guardianship has yet been ordered or the guardian is unavailable.