Guardianship

Trustee has in the German speaking different meanings.

Germany

With trustee under German law, a person meant, which is involved as a third party in the conclusion and performance of a contract, that is not a party to or is, and is to protect the interests of another, for example, a supervisor or a deputy. After the Supreme Court advocate are those people that take account of their particular expertise to a large extent the personal confidence of the contractor to complete and this only becomes a guarantee for the proper performance of risky transactions give ( see BGHZ 13, 313; 70, 337 ).

In the insolvency proceedings, a trustee is appointed in the arrangement of self-administration instead of the liquidator. The administrator has among other things, to assess the economic situation of the debtor and to monitor the management and expenditure on the conduct of life.

Austria

The guardianship ( guardianship ) in 1984 replaced the incapacitation and guardianship for adults. The trustee ( curator) is within the assigned area of ​​responsibility legal representative of the person concerned.

Order

If a full- year old with an intellectual disability or mental illness is unable to carry out certain matters for themselves, without running the risk of being discriminated against, a trustee is appointed. Physical disability and addictions are not a reason for the trustee order. Can someone control his own affairs despite disability or mental illness - for example with the help of his family or mental health services - may also be ordered at no trustee. The legal basis is § 273 of the Civil Code.

Method

First you need a trial to test the need for a trustee order to be initiated. Mostly comes a suggestion for a guardianship process by a member of, an authority or a psychosocial service. The excitation may be in writing or in the form of a conversation. Contact is the Pflegschaftsrichter of that District Court, which is responsible for the place of residence of the person concerned. Only the affected person may submit an application for the appointment of an administrator's court.

The district court decides in processes other than litigation. The judge must give a personal picture of the person concerned in the context of a preliminary hearing at first. Since 1 July 2007, the judge may also initiate a clearing procedure to view in more detail by a Clearing advocate the lives of those affected and possibly to consider alternatives to order a custodian. Seem then still met him the conditions for the appointment of a custodian, an opinion of an expert in psychiatry must be obtained. Once the study is the court decides after conducting a hearing. In this decision, the areas of responsibility of the administrator are explicitly mentioned.

Group of people

  • Related parties

Usually a family member or other trusted person of the person concerned to the trustee appointed ( § 279 Civil Code) by the court.

  • Association Trustee

Since 1984, Austria has recognized by the Ministry of Justice Clubs for guardianship. The full- time and honorary trustee of an association will then be ordered, if no related person is for the job available.

  • Lawyers and notaries

They are used as the trustee if it is predominantly legal matters as to which the person requires support.

Tasks

The range of tasks is determined individually by the judge for each case. The tasks depend on the specific issues of the individual concerned and the severity of the disability or mental illness. With each order of the administrator, the matter of custody is in any case includes. What is meant is to strive for the offered medical and social care of the person.

Examples:

  • Individual matter (eg for the representation in the proceedings in the pension insurance institution of the workers )
  • A Circle of affairs (eg for the " income and asset management," for the " Representation before authorities ", the " consent to medical treatment " ... )
  • All matters

No trustee is obliged to take care of the actual sufferers themselves. But he is obliged to arrange for the medical care and social support to the necessary extent and ensure. This basic task of the administrator is, ensuring the child's care.

Effects

According to § 280 of the Civil Code, the legal capacity of a person for whom a guardian has been appointed, limited in the scope of his responsibilities circles. In the German guardianship law, this is only the case if at the same time was placed next to a service, a reservation of consent.

Solicitors stem Amendment Act 2006

The trustee law has been amended with effect from 1 July 2007. The core content of the Trustee Amendment Act 2006:

  • The suppression of the Institute of advocacy in favor of the purchase of the tasks in the family,
  • A legal authority to act next of kin,
  • The legal regulation of a health care proxy,
  • The possibility of a trustee available
  • The prevention of mass guardianships by a maximum number of 5 guardianships for individuals as champions and 25 at lawyers and notaries,
  • An order of the association - in association guardianships - and not the employees of the organization of the administrator,
  • To make the appropriate authority associations, advocate, patient advocates and residents representatives designated,
  • The consumer protection law duty to disclose covered by the support of social or disability assistance services for children staying in residential or nursing homes at the expense of social or disability assistance.

Switzerland

The term of the administrator in Swiss law is ambiguous. He is in particular:

  • A so-called atypical organ in the debt collection and bankruptcy law. As such, it is ideally suited for the execution of court probate proceedings ( moratorium / Nachlassliquidation ), except for official bankruptcy proceedings and out of court renovations ( especially after debt consolidation ). In some cantons of Switzerland, a check is necessary for the exercise of the trustee profession.
  • The administrator of a collective assets under Article 89b of the Civil Code ( [ not yet in force ], as amended 19 December 2008)
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