Last Updated on July 1, 2021 by LawEuro
German Civil Code (BGB) German law
Title 2
Legal custodianship
Section 1896
Requirements
(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 custodianship court, on his application or of its own motion, appoints a custodian 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.
(1a) A custodian may not be appointed against the free will of the person of full age.
(2) A custodian may be appointed only for groups of tasks in which the custodianship is necessary. The custodianship is not necessary to the extent that the affairs of a person of full age may be taken care of by an authorised person who is not one of the persons set out in section 1897 (3), or by other assistants for whom no legal representative is appointed, just as well as by a custodian.
(3) The assertion of rights of the person under custodianship vis-à-vis the person authorised by him may also be defined as a group of tasks.
(4) The decision on the telecommunications of the person under custodianship and on the receipt, opening and withholding of his post are included in the group of tasks of the custodian only if the court has expressly ordered this.
Section 1897
Appointment of a natural person
(1) The custodianship court appoints as custodian a natural person who is suited to take care of the affairs of the person under custodianship from a legal point of view within the group of tasks determined by the court and to take care of his person to the extent necessary.
(2) The employee of a custodianship association recognised under section 1908f who is solely or partly employed there as a custodian (association custodian) may be appointed only with the consent of the association. The same applies to the employee of a public authority competent in custodianship matters who is solely or partly employed there as custodian (public authority custodian).
(3) A person who is in a situation of dependence or in another close connection to an institution, a home or another establishment to which the person of full age has been committed or in which he lives may not be appointed custodian.
(4) If the person of full age suggests a person who may be appointed custodian, this suggestion should be followed unless it is inconsistent with the best interests of the person of full age. If he suggests that a particular person should not be appointed, this should be taken into account. Sentences 1 and 2 also apply to suggestions that the person of full age made before the custodianship proceedings, unless he discernibly does not wish to uphold these suggestions.
(5) If the person of full age suggests no-one who may be appointed custodian, then when the custodian is selected, account must be taken of the family and other personal ties of the person of full age, in particular the ties to parents, to children, to the spouse and to the civil partner, and of the danger of conflicts of interest.
(6) A person who conducts custodianships as part of the exercise of his occupation or profession should be appointed custodian only if no other suitable person is available who is prepared to conduct the custodianship on a voluntary basis. If the custodian becomes aware of circumstances which indicate that the person of full age can be cared for by one or more than one other suitable persons outside the exercise of an occupation or profession, he must notify the court of this.
(7) If a person, under the conditions of subsection (6) sentence 1, is appointed a custodian for the first time in the district of the custodianship court, the court should before this hear the competent public authority on the suitability of the selected custodian and on the findings to be made under section 1 (1) sentence 1 second alternative of the Guardians and Custodians Payment Act [Vormünder- und Betreuervergütungsgesetz]. The competent authority should request the person to submit a certificate of good conduct and a status report from the debtors’ list.
(8) If a person is appointed under the condition of subsection (6) sentence 1, he must declare the number and volume of the custodianships he is conducting professionally.
Section 1898
Duty to assume custodianship
(1) The person selected by the custodianship court is under a duty to assume the custodianship if he is suitable as a custodian and he can be expected to assume it, taking into account his family, professional and other circumstances.
(2) The person selected may be appointed a custodian only when he has stated that he is prepared to assume the custodianship.
Section 1899
More than one custodian
(1) The custodianship court may appoint more than one custodian if better care can be taken of the affairs of the person under custodianship as a result of this. In this case, it determines which custodian is entrusted with which group of tasks. There is no appointment of more than one custodian who receive payment except in the cases dealt with in subsections (2) and (4) and section 1908i (1) sentence 1 in conjunction with section 1792.
(2) A special custodian must always be appointed for the decision on consent to a sterilisation of the person under custodianship.
(3) To the extent that more than one custodian is entrusted with the same group of tasks, they may take care of the affairs of the person under custodianship only jointly, unless the court has ordered otherwise or delay entails risk.
(4) The court may also appoint more than one custodian in such a way that one is to take care of the affairs of the person under custodianship only to the extent that the other is prevented.
Section 1900
Custodianship by association or public authority
(1) If the person of full age cannot be adequately cared for by one or more than one natural persons, the custodianship court appoints a recognised custodianship association as custodian. The appointment requires the consent of the association.
(2) The association transfers the exercise of the custodianship to individual persons. In doing this, it must comply with suggestions of the person of full age, to the extent that there are no compelling reasons against this. The association notifies the court at once to whom it has transferred the exercise of the custodianship.
(3) If the committee becomes aware of circumstances which indicate that the person of full age can be cared for adequately by one or more than one natural persons, he must notify the court of this.
(4) If the person of full age cannot be cared for adequately by one or more than one natural persons or by an association, the court appoints the competent public authority as custodian. Subsections (2) and (3) apply with the necessary modifications.
(5) The decision on consent to a sterilisation of the person under custodianship may not be transferred to associations or to public authorities.
Section 1901
Scope of the custodianship, duties of the custodian
(1) The custodianship includes all activities that are necessary to attend to the affairs of the person under custodianship from a legal point of view in accordance with the following provisions.
(2) The custodian must attend to the affairs of the person under custodianship in a manner that is conducive to his welfare. The best interests of the person under custodianship also includes the possibility for him, within his capabilities, to shape his life according to his own wishes and ideas.
(3) The custodian must comply with wishes of the person under custodianship to the extent that this is not inconsistent with the best interests of the latter and can be expected of the custodian. This also applies to wishes which the person under custodianship expressed before the appointment of the custodian, unless he discernibly does not wish to uphold these wishes. Before the custodian deals with important matters, he discusses them with the person under custodianship, to the extent that this is not inconsistent with the best interests of the latter.
(4) Within his group of tasks, the custodian must help towards possibilities being used to remove or improve the illness or handicap of the person under custodianship, to prevent its deterioration or to mitigate its consequences. If the custodianship is conducted professionally, then in suitable cases the custodian must, on the order of the court, draw up a custodianship plan at the commencement of the custodianship. The custodianship plan must set out the aims of the custodianship and the measures to be undertaken to achieve them.
(5) If the custodian becomes aware of circumstances which enable the cancellation of the custodianship, he is to notify the custodianship court of this. The same applies to circumstances which enable a restriction of the group of tasks or require its extension, the appointment of a further custodian or the order of a reservation of consent (section 1903).
Section 1901a
Living will
(1) If a person of full age who is able to consent has determined in writing, for the event of his becoming unable to consent, whether he consents to or prohibits specific tests of his state of health, treatment or medical interventions not yet directly immanent at the time of determination (living will), the custodian must examine whether these determinations correspond to the current living and treatment situation. If this is the case, the custodian must see to it that the will of the person under custodianship is done. A living will may be revoked at any time without a specific form.
(2) If there is no living will, or if the determinations of a living will do not correspond to the current life and treatment situation, the custodian must determine the wishes with regard to treatment or the presumed will of the person under custodianship, and decide on this basis whether he consents to or prohibits a medical treatment pursuant to subsection (1). The presumed will must be ascertained on the basis of concrete indications. Consideration must be given, in particular, to previous oral or written statements, ethical or religious convictions and other personal values of the person under custodianship.
(3) Subsections (1) and (2) apply regardless of the nature and stage of any illness of the person under custodianship.
(4) No one may be obliged to establish a living will. The conclusion of a contract may not be made contingent on the establishment or submission of a living will.
(5) Subsections (1) to (3) apply to authorised representatives with the necessary modifications.
Section 1901b
Discussion to ascertain the patient’s will
(1) The physician in attendance must examine which medical treatment is indicated with regard to the patient’s overall condition and prognosis. He and the custodian must discuss this measure, considering the patient’s will as a basis for the decision to be taken pursuant to section 1901a.
(2) When ascertaining the patient’s will pursuant to section 1901a (1) or the wishes with regard to treatment or the presumed will pursuant to section 1901a (2), close relatives and other persons enjoying the confidence of the person under custodianship should be afforded the opportunity to make a statement insofar as this is possible without any considerable delay.
(3) Subsections (1) and (2) apply to authorised representatives with the necessary modifications.
Section 1901c
Wishes in writing with regard to custodianship, enduring power of attorney
A person who is in possession of a document in which a person, for the contingency that he is under custodianship, has communicated suggestions on the choice of the custodian or wishes for the conduct of the custodianship, must without undue delay deliver it to the custodianship court after he obtains knowledge that proceedings for the appointment of a custodian have been commenced. Similarly, the possessor must inform the custodianship court of documents in which the person concerned has authorised another person to take care of his affairs. The custodianship court may require a copy to be submitted.
Section 1902
Representation of the person under custodianship
In his group of tasks, the custodian represents the person under custodianship in court and from court.
Section 1903
Reservation of consent
(1) To the extent that this is necessary to prevent a substantial danger for the person or the property of the person under custodianship, the custodianship court orders that the person under custodianship requires the consent of the custodian for a declaration of intention that relates to the group of tasks of the custodian (reservation of consent). Sections 108 – 113, 131 (2) and section 210 apply with the necessary modifications.
(2) A reservation of consent may not extend to declarations of intention that are directed to entering into a marriage or creating a civil partnership, to dispositions mortis causa and to declarations of intention for which a person with limited capacity to contract under the provisions of Books Four and Five does not need the consent of his legal representative.
(3) Where a reservation of consent is ordered, the custodian nevertheless does not require the consent of his custodian if the declaration of intention merely confers a legal advantage on the person under custodianship. To the extent that the court does not order otherwise, this also applies if the declaration of intention relates to a trivial matter of everyday life.
(4) Section 1901 (5) applies with the necessary modifications.
Section 1904
Approval of the custodianship court in the case of medical treatment
(1) The consent of the custodian to an examination of the state of health of the person under custodianship, to therapeutic treatment or to an operation is subject to the approval of the custodianship court if the justified danger exists that the person under custodianship will die or will suffer serious injury to his health that lasts for a long period by reason of the measure. Without the approval, the measure may be carried out only if delay entails danger.
(2) The non-consent to or revocation of the consent of the custodian to a test of the state of health, treatment or medical intervention requires the approval of the custodianship court if the measure is medically indicated and there is justified reason to fear that the person under custodianship will die or suffer serious, long-term detriment to health if the measure is not carried out or is discontinued.
(3) Approval pursuant to subsections (1) and (2) must be given if the consent, non-consent or revocation of consent corresponds to the will of the person under custodianship.
(4) Approval pursuant to subsections (1) and (2) is not required if agreement is reached between the custodian and the physician in attendance that the granting, non-granting or revocation of consent corresponds to the will of the person under custodianship established pursuant to section 1901a.
(5) Subsections (1) to (4) also apply to an authorised representative. The latter may only consent to, not consent to or revoke consent to one of the measures designated in subsection (1) sentence 1 or subsection (2) if the power of attorney expressly includes these measures and is given in writing.
Section 1905
Sterilisation
(1) Where the operation is a sterilisation of the person under custodianship to which the person may not consent, the custodian may consent only if
1. the sterilisation is not inconsistent with the intention of the person under custodianship,
2. the person under custodianship will permanently remain incapable of consenting,
3. it is to be assumed that without the sterilisation there would be a pregnancy,
4. as a result of this pregnancy a danger for the life of the pregnant woman or the danger of a serious adverse effect on her physical or psychological state of health were to be expected which could not be prevented in a reasonable way, and
5. the pregnancy cannot be prevented by other reasonable means.
A serious danger for the psychological state of health of the pregnant woman also includes the danger of serious and persistent suffering which would threaten her because custodianship court measures which would entail separating her from her child (sections 1666 and 1666a) would have to be taken against her.
(2) The consent must be approved by the custodianship court. The sterilisation may not be carried out until two weeks after the approval takes effect. In the sterilisation, preference is always to be given to the method that permits a refertilisation.
Section 1906
Approval of the custodianship court with regard to accommodation
(1) It is admissible for the custodian to put the person under custodianship in accommodation that is associated with deprivation of liberty only as long as this is necessary for the best interests of the person under custodianship because
1. by reason of a mental illness or mental or psychological handicap of the person under custodianship there is a danger that he will kill himself or cause substantial damage to his own health, or
2. to avert the threat of substantialdamage to health, an examination of the state of health of the person under custodianship, therapeutic treatment or an operation is necessary without which the accommodation of the person under custodianship cannot be carried out and the person under custodianship, by reason of a mental illness or mental or psychological handicap, cannot recognise the necessity of the accommodation or cannot act in accordance with this realisation.
(2) The accommodation is admissible only with the approval of the custodianship court. Without the approval, the accommodation is admissible only if delay entails risk; the approval must thereafter be obtained without undue delay. The custodian must terminate the accommodation if its requirements cease to be satisfied. He must notify the custodianship court of the termination of the accommodation.
(3) If medical treatment in accordance with subsection (1) no. 2 is inconsistent with the natural will of the person under custodianship (coercive medical treatment), the custodian may only consent to it if
1. the person under custodianship cannot recognise the necessity of the medical treatment or cannot act in accordance with this realisation, because of a mental illness or of a mental or psychologicalhandicap,
2. previous attempts were made to convince the person under custodianship of the necessity of the medical treatment,
3. the coercive medical treatment in the context of accommodation under subsection (1) is necessary for the best interests of the person under custodianship, in order to avert the threat of substantial damage to health,
4. the substantial damage to health cannot be averted by any other measure which is reasonable for the person under custodianship, and
5. the anticipated benefit of the coercive medical treatment considerably outweighs the anticipated adverse effects.
Section 1846 is only to be applied if the custodian is prevented from carrying out his duties.
(3a) Consent to the coercive medical treatment requires the consent of the custodianship court. The custodian is to revoke consent to the coercive medical treatment if the preconditions therefor cease to apply. He is to inform the custodianship court of the revocation.
(4) Subsections (1) and (2) apply with the necessary modifications if the person under custodianship who is in an institution, a home or another establishment without being accommodated there is to be deprived of his liberty by mechanical devices, by medical drugs or in another way for a long period of time or regularly.
(5) The accommodation by an authorised person and the consent of an authorised person to measures under subsections (3) and (4) require that the power of attorney be granted in writing and expressly cover the measures set out in subsections (1), (3) and (4). Apart from this, subsections (1) to (4) apply with the necessary modifications.
Section 1907
Approval of the custodianship court on abandonment of rented home
(1) The custodian requires the approval of the custodianship court for the termination of a lease of residential space which the person under custodianship rented. The same applies to a declaration of intention that is directed to the termination of such a lease.
(2) Where other circumstances occur by reason of which the termination of the lease is taken into consideration, the custodian must notify the custodianship court of this without undue delay if his group of tasks includes the lease or the determination of residence. If the custodian wishes to abandon residential space of the person under custodianship in another way than by notice of termination or cancellation of a lease, he must notify this too without undue delay.
(3) The custodian requires the approval of the custodianship court for a lease or usufructuary lease or another contract by which the person under custodianship is obliged to make periodical payments if the contractual relationship is to last longer than four years or residential space is to be leased by the custodian.
Section 1908
Approval of the custodianship court with regard to advancement
The custodian may promise or grant an advancement from the property of the person under custodianship only with the approval of the custodianship court.
Section 1908a
Precautionary appointment of a custodian and order of reservation of consent for minors
Measures under sections 1896 and 1903 may also be made for a minor who is seventeen years of age if it can be assumed that they will be necessary when he is of full age. The measures take effect only when he reaches the age of majority.
Section 1908b
Removal of the custodian
(1) The custodianship court must remove the custodian if his suitability to care for the affairs of the person under custodianship is no longer guaranteed or there is another compelling reason for the removal. A compelling reason also exists if the custodian has intentionally issued an incorrect statement of costs or has not maintained the necessary personal contact with the person under custodianship. The court should remove the custodian appointed under section 1897 (6) if the person under custodianship can be cared for by one or more than one other persons outside the exercise of an occupation or profession.
(2) The custodian may require his removal if after his appointment circumstances arise on the basis of which he can no longer be expected to conduct the custodianship.
(3) The court may remove the custodian if the person under custodianship suggests an equally suitable person who is prepared to assume the custodianship.
(4) The association custodian must also be removed if the association applies for this. If the removal is not necessary for the best interests of the person under custodianship, the custodianship court may instead declare, with the agreement of the custodian, that the custodian will continue the custodianship in future as a private person. Sentences 1 and 2 apply with the necessary modifications for the public authority custodian.
(5) The association or the public authority is to be removed as soon as the person under custodianship can be adequately cared for by one or more than one natural persons.
Section 1908c
Appointment of a new custodian
If the custodian dies or if he is removed, a new custodian is to be appointed.
Section 1908d
Cancellation or alteration of custodianship and reservation of consent
(1) The custodianship is to be cancelled if its requirements cease to be satisfied. If these requirements cease to be satisfied for only part of the tasks of the custodian, his group of tasks is to be restricted.
(2) If the custodian was appointed at the application of the person under custodianship, the custodianship, on the application of that person, is to be cancelled, unless custodianship of the court’s own motion is necessary. The application may also be made by a person incapable of contracting. Sentences 1 and 2 apply with the necessary modifications for the restriction of the group of tasks.
(3) The group of tasks of the custodian is to be extended if this becomes necessary. The provisions on the appointment of the custodian apply here with the necessary modifications.
(4) Subsections (1) and (3) apply to the reservation of consent with the necessary modifications.
Section 1908e
(repealed)
Section 1908f
Recognition as custodianship association
(1) An association having legal personality may be recognised as a custodianship association if it guarantees that it
1. has a sufficient number of suitable employees and will supervise and give further education to these and insure them appropriately for damage that they may cause to others in the course of their activity,
2. methodically endeavours to acquire voluntary custodians, introduces them to their tasks, gives them further education and advises and supports them and authorised representatives in the performance of their tasks,
2a. methodically gives information on enduring powers of attorney and custodianship orders,
3. enables an exchange of experience between the employees.
(2) The recognition applies for the relevant Land; it may be restricted to individual parts of a Land. It is revocable and may be given subject to conditions.
(3) Details are laid down in Land law. It may also provide further requirements for recognition.
(4) The recognised custodianship associations may, in the individual case, advise persons in the creation of an enduring power of attorney.
Section 1908g
Public authority custodian
(1) No coercive fine under section 1837 (3) sentence 1 is imposed on a public authority custodian.
(2) The public authority custodian may also invest money of the person under custodianship under section 1807 in the corporation in which he is employed.
Section 1908h
(repealed)
Section 1908i
Provisions applicable with the necessary modifications
(1) Apart from this, the following sections apply with the necessary modifications to custodianship: section 1632 (1) to (3), sections 1784, 1787 (1), section 1791a (3) sentence 1 second half-sentence and sentence 2, sections 1792, 1795 to 1797 (1) sentence 2, sections 1798, 1799, 1802, 1803, 1805 to 1821, 1822 nos. 1 to 4 and 6 to 13, sections 1823 to 1826, 1828 to 1836, 1836c to 1836e, 1837 (1) to (3), sections 1839 to 1843, 1846, 1857a, 1888, 1890 to 1895. Law of a Land may lay down that provisions that relate to the supervision of the custodianship court with regard to property law and to the entering into of apprenticeship agreements and contracts of employment do not apply with respect to the competent authority.
(2) Section 1804 applies with the necessary modifications, but the custodian, in representation of the person under custodianship, may also give occasional presents if this is consistent with the wish of the person under custodianship and is customary in accordance with his standard of living. Section 1857a applies with the necessary modifications to the custodianship by the father, the mother, the spouse, the civil partner or a descendant of the person under custodianship and to the association custodian and the public authority custodian to the extent that the custodianship court does not direct otherwise.
Section 1908k
(repealed)
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