Interview l lawyer about guardianship
“We couldn’t have a case of Britney Spears”
US pop star Britney Spears is under guardianship – and is not even allowed to decide on a possible pregnancy. The lawyer Dagmar Zorn explains why this would not be possible in Germany – and how guardianship is regulated here.
Dagmar Zorn works as a lecturer in the administration of justice at the University of Economics and Law (HWR) in Berlin – even at the moment when the interview request from rbbl24 reaches her. She uses a break in her lecture to call back.
rbbl24: Ms. Zorn, the singer Britney Spears got a guardian in the USA, since then she has not been allowed to determine whether she becomes pregnant or how she does her job. In Germany there is something like a guardianship, but here it means legal support …
Dagmar Zorn: That’s right, in Germany guardianship for adults was replaced by legal care in 1992. However, such care must be geared very closely to the interests of the person being cared for. This part of the law is currently being reformed. The reform is based on the United Nations Convention on the Rights of Persons with Disabilities and once again strengthens the rights of those in care. As a result, the person being looked after is placed even more in the center than before. The concept behind this is called assisted decision making.
What is the new concept about?
The reform will come into force in 2023 and from then on all decisions that can somehow be made by the person being cared for must also be made by them. This means that the supervisor has to support people in their independence and in their own decision-making even more than before.
When and how can it be determined that people have to give up part of their autonomy?
The legislature says that in Germany an adult who is unable to take care of his affairs himself due to a physical disability or illness gets a carer. Assuming I had dementia and could no longer take care of my financial affairs myself: Then I would get a supervisor for it. Unless I have made provisions myself for this case and have given a third party a power of attorney in the event of illness. If this is not the case, the state stands by and orders care.
But who decides that one person can no longer manage their affairs alone?
This is actually checked in a very formal process. In most cases, relatives, neighbors or employees in care facilities bring the information to a care court from the outside that a person needs someone to take care of their affairs because they are no longer able to do so themselves. Then a custody court procedure starts. At the end of the day, supervision can be ordered, which is then checked again at the latest after seven years and the whole process starts all over again.
As a rule, experts are then commissioned to provide an expert opinion in which they consider appropriate support to be necessary. How does that go?
It is mostly experts from the medical field who get a personal impression of the person concerned. The respect of the person is prescribed. It then comes down to a technical examination. What can the person no longer do? Why can’t she do that anymore? If it is found that the person can no longer regulate certain things, a check is made: Has he made provisions for this case?
What, for example, may legal guardians decide instead of the person being cared for?
It can happen that a person is deprived of liberty, for example in a psychiatric ward, if there is a risk of self-harm or harm to others. In practice, however, there are also very often housing issues that people cannot perceive themselves. In such cases, after a corresponding judicial review and approval, caregivers may also sell an apartment from the property of the person being cared for.
These are far-reaching decisions. What are the formal requirements for training a legal advisor?
This is currently not regulated and we want to formulate this point for the first time in a working group in the Federal Ministry of Justice. The point is to establish requirements for the people who do legal care professionally. The legislature still assumes that volunteer carers perform these tasks, often relatives. In recent years, however, it has been more and more common that no relatives have been found. That is why the care workers are on the rise. And for that we need minimum requirements.
How often does it happen that important decisions are made against the will of the person being cared for?
Something like that can happen, but as a supervisor I always have to orientate myself towards the wishes of the person being cared for. If someone wants to buy a Ferrari and has the money for it, then I can’t stand in the way just because I don’t like cars like that. Supervisors may only shift their own opinion instead of that of the person being cared for if this is actually necessary to protect the person being cared for.
And it is the task of the court to check at least once a year whether the supervisor is also fulfilling these obligations and is not acting inadmissibly against the will of the person being cared for. Apart from the annual reporting obligation that exists for every supervisor, a court can always turn to the supervisor itself to find out what has happened in this or that matter.
But if the supervisor writes the report on his or her own activity, then it is easy to imagine that he or she leaves out certain conflicts in this report.
That’s right. But as a court I always have the opportunity to ask the person concerned myself. And as far as I know, the courts are making more and more use of this.
Then would you consider it impossible for a court in Germany to intervene as strongly in private life as the US judiciary in the Britney Spears case?
We couldn’t have a Britney Spears case. A marriage, for example, has nothing to do with the caregiver. If the person being cared for is capable of marrying, he or she can marry at any time. It is the other way around with divorce.
Another example is interference with the right to vote. The arrangement of supervision used to have an impact on the right to vote. It was entered in the election book that this person has a supervisor for all matters, and so this person was neither actively nor passively entitled to vote. All of that has been done away with. The supervised person can also conclude or draw up wills or inheritance contracts if he is authorized to do business.
However, it can happen that the person being cared for has children – and if the carer is of the opinion that this person cannot carry out his or her duties as a legal guardian, then there can be a reference to a family court with a request to review custody. Indeed, there are always conflicts on this point.
Thank you for the interview!
The interview was conducted by Roberto Jurkschat.