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Guardianship-judicial permission is not an adhesion release

A permission of the court of guardianship is not a release from the obligation to pay damages. The responsible person is responsible of far for the legal standard its actions.

The period of limitation in relation to the cared for one and/or its inheriting amounts to 30 years; there is besides an inhibitioninhibition inhibition during current support (, BGB).

Civilian and criminal adhesion of the responsible person

Bases: BGB (i.V.m. "§ 1908i exp. 1 BGB), StGB and "§ 9 OWiG

The responsible person can be made liable for damage, which he causes for the cared for one. It is advisable to lock a liability insurance for the responsible person. The court of guardianship can obligate the responsible person to lock a liability insurance (exp. 2 BGB).

Honorary responsible persons are already insured in most Lands of the Federal Republic of the country (except North-Rhine/Westphalia and Saarland). Also for the cared for one a liability insurance should be locked, if this is not (BGB). Care associations offer often free insurance for club members. With occupation responsible persons it is considered as a condition for the occupation entrance that a liability insurance is present.

Kinds of the obligation injury

In the daily work of the responsible person it can come to numerous different procedures, which release liability claims. It is not possible because of the respective characteristics of the individual case to give a complete enumerating. Below however at least cases of example are to be listed, which were already evaluated accordingly in the iurisdiction and/or literature.

Processing

Adhesion-legal consequences in the context of the guidance of processes for the cared for one can be released among other things through:

  • the guidance of a process offering no prospects;
  • the incorrect guidance of a process;
  • missing a process cost assistance request;
  • omitting a complaint before expiration of the period of limitation;
  • omitting a report on financial obligations of the cared for one due to lost processes.
Social security benefits and maintenance

In the context of the financial security of the cared for one as obligation injury were affirmed:

  • omission of the maintenance recovery;
  • the maintenance deferment of payment granted to injustice;
  • the period missing with the position pension or other social security benefit request.

The Federal Social Court regarded it as obligation of the responsible person to worry personally about a freiwillige far insurance in the health insurance company if the field of duties health concern exists (judgement from 15 April 2002, B 12 KR 14/01, FamRZ 2002, 1471). With a late pension request it was recognized that the responsible person trusted when desired first the cared for one in the success of deer to ASS ASS (LG Berlin BtPrax 2001, 83).

In the iurisdiction it was stated that requesting from social welfare assistance counts to the person concern, not to the fortune concern (LG Cologne FamRZ 1998, 919, OVG North-Rhine/Westphalia FamRZ 2001, 312). A responsible person, who holds alone the fortune concern, cannot be responsible therefore already therefore for a late social welfare assistance filing of an application. Similar delimitation problems exist with the claims for alimony. The OLG two-bridges does not see it on as part of the field of duties fortune concern (OLG two-bridges FamRZ 2000, 1324 = NJW-RR 2001, 151).

General fortune concern

Within the range of the fortune concern as obligation injury one affirmed:

  • the hasty sales of a house property in times of rising prices;
  • the uncritical assumption of the evaluation of real estate properties;
  • the plant of (for the current maintenance one does not need) with a too small interest rate (on a passbook with legal term of notice instead of a plant in government notes or similar securities);
  • the investment of funds in foreign (uncertain) securities.

For the answer of the question, whether an obligation injury within the range of the fortune concern is present, generally the total behavior of the legal responsible person is to be examined, individual expenditure posts may here not arbitrarily be picked out. With legal knowledge lacking the responsible person can be obligated to catch up right information with the court of guardianship ("§ 1837 exp. 2 BGB).

Dwelling

In the range of the guidance of care for of age ones it is to be noted with the notice of dwelling by a responsible person that this on the permission of the court of guardianship in accordance with "§ 1907 exp. 1 BGB is dependent.

Therefore here an adhesion comes for

  • for the late obtainment of guardianship-judicial permission;
  • the culpable delay of the housing dissolution after given permission;
  • the obligation-adverse task of the dwelling of the cared for one without previous guardianship-judicial permission in consideration.

The continuation of the renting relationship of the cared for one can be required however also against a guardianship-judicial permission for the dwelling notice, if it serves well-being of the cared for one ("§ 1901 exp. 1 BGB), because for example its state of health improved and the housing task is therefore no longer necessary. Here the dwelling notice can release again adhesion-legal consequences despite judicial permission, since the responsible person always also has to orient all legal acts to well-being of the cared for one. The guardianship-judicial duty to obtain a permit applies only to dwellings inhabited by the cared for one.

The moreover a responsible person was made adhesion-legally responsible, because he had not provided in time for a housing notice (LG Berlin FamRZ 2000, 1526). The admission to the dwelling of the cared for one can be also the subject of the argument. According to LG and OLG Frankfurt/Main the responsible person cannot enter the dwelling of the cared for one against its will. It cannot be authorized also for this by the court of guardianship (LG Frankfurt BtPrax 1994.216 (=FamRZ 1994,1617; OLG Frankfurt, BtPrax 1996.71). This view is contentious, other view is e.g. the LG Berlin BtPrax 1996.111 = FamRZ 1996,821; LG Freiburg FamRZ 2000.1316).

The housing dissolution can become also the payment of damages-justifying facts, if the responsible person lets for example valuable antiques dispose erroneously as check garbage or in unawareness of the donation prohibition ("§, 1908 i exp. 2 BGB) furnishings of the cared for one given away. In the doubt value appraisals should be caught up, be consulted during the housing dissolution neutral witnesses and be made if necessary instead of donations loans (against proof).

Person concern

An adhesion within the range of the person concern is always more difficult than in the other ranges. Usually it concerns questions of the welfare treatment and/or the liberty-extracting accommodation. Thus for example the Federal High Court decided on 11 October 2000 that an obligation demonstration was inadmissible for the ambulatory administration of medicines. The LG Oldenburg called the placing of a cared for one into an open geriatric home against its will inadmissible (LG Oldenburg FamRZ 1997, 899). Problematic also the liberty-extracting accommodation is only with the field of duties health welfare service (OLG Hamm FamRZ 2001, 861).

Even if one were given for certain legal acts necessary guardianship-judicial permission (for example permission for the notice of a renting relationship over dwelling, exp. 1 BGB) by the court of guardianship, this does not exclude an adhesion of the legal responsible person.

See also

  • Support, responsible person document of identification, responsible person order, responsible person obligations, care procedure, occupation responsible person, care association, care authority, procedure male nurse, guardian,

Literature

Books

  • The adhesion of the responsible person, Cologne 2004, ISBN 3-89817-304-6

Magazine contributions

  • Farmer/knee by: Adhesion of the responsible person because of injury of the control duty; BtPrax 1998, 123
  • Beck: The possible adhesion of the responsible person with an accommodation of the cared for one, BtPrax 2001, 195
  • Deinert/cry farmer: Adhesion and adhesion assumption in the care relationship, BtPrax 1993, 185
  • Meier: To the adhesion of the occupation responsible person; BtPrax 1999, 57
  • Pardey: State adhesion for guardians, male nurses and responsible FamRZ 1989, 1030
  • Writer: The adhesion of the guardian in the area of conflict of the public right and private law, AcP 1978, 533
  • Schulz: Adhesion of the employment bodies for authority responsible persons; BtPrax 1995, 56
  • StahlCarle: The fiscal legal status of the responsible person of a taxdishonest cared for one and steering wheel-meet-legal risks: DStR 2000, P. 1254

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