Choice and Control in my life Round table Discussion on legal Capacity legislation Belfast, 26 th November Betreuungsgesetz of 1992 – the German Example for a Guardianship-Legislation on Legal Capacity and Decision Making

New Law: Betreuung – „legal custodianship“:  One flexible measure to provide for tailor-made legal support and representation, with regard of the principle of necessity and respect for the right of self-determination

Betreuung – § 1896 Civil Code (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 court (Betreuungsgericht), on his application or of its own motion, appoints a custodian (Betreuer) 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.

Betreuung - § 1896 sec. 2 Civil Code A Betreuer may be appointed only for tasks in which the Betreuung is necessary. The Betreuung is not necessary to the extent that the affairs of a person of full age may be taken care of by an authorized person (power of attorney)……or by any other form of assistance without legal representation.  „principle of necessity and subsidiarity“

Betreuung – Legal Structure (1)  There is no formal incapacitation – the person concerned principally can take legal decisions personally – as long as he/she is able to do so  However, the Betreuer has the right to legally represent the person concerned, within his scope of tasks, § 1902 BGB  Practically, both the disabled person and the Betreuer are entitled to take legally binding decisions  The Betreuer has to respect the Right of Self-Determination of the person concerned – before he takes decisions as representative, he is obliged to try to find out the wishes of the person concerned – preference for supported decision-making, § 1901 BGB

Betreuung – Legal structure The reservation of consent - § 1903 Civil Code „To the extent that this is necessary to prevent a substantial danger for the person or the property of the person under Betreuung, the Betreuungsgericht orders that the person under Betreuung requires the consent of the Betreuer for a decision that relates to the scope of tasks of the Betreuer“.  Limitation of legal capacity in order to protect, applicated in about 5 % of all cases of Betreuung

Betreuung – Legal Structure Personal Rights not limited by Betreuung:  The Right to marry  The right to make a will  The Right to vote,  with the exception of those few cases (about 1 %) of „Betreuung for all affairs of the person“  This provision of § 13 BWahlG (Federal Election Law) should be challenged with regard to Art. 29 CRPD

Who is chosen as Betreuer?  Preference is given to the choice of the disabled person, § 1897 sec. 1 Civil Code  Second preference for family Members, other personal relationships or other volunteers, § 1897 sec. 4, 5 Civil Code  If necessary, professional Betreuers (independent Betreuers, employees of „Betreuungsvereine“ (=associations tutlaires) or the public authority for Betreuung may be appointed, §

Betreuung – Legal structure For the protection of the disabled person, the Betreuer needs additional approval of the Court for a number of important decisions:  Decisions of the Betreuer about medical treatment with high risks for the patient, § 1904 Civil Code  The consent to a sterilization of a disabled person who is not able to understand the measure and decide personally, § 1905  Detention in order to protect the person from commiting suicide or to faciltate a necessary treatment, § 1906 Civil Code  Other measures which deprive the person of its personal freedom to move in „open“ facilities such as group homes, § 1906 sec. 4 Civil Code,  The termination of a housing contract, § 1907 Civil Code

Control of the Betreuers  The Court has to control the Betreuers and intervene when necessary by specific orders, § 1837 Civil Code  Each Betreuer has to write a report once per year, § 1840 Civil Code  Requirements for reporting by family members are lower, §§ 1854 sec. 2, § 1857a Civil Code  Actual control of Betreuers is not very intense!

Betreuung - Procedural Steps (1) (FamFG – Familienverfahrensgesetz)  The Guardianship Court must investigate, as soon as it gets notice by anybody about a person in need, § 26 FamFG  The person concerned is informed about the procedure, § 278 sec. 2 FamFG  Some Courts order a Report from the Local Authority for Betreuung, about the Life Situation of the person concerned and the necessity of Betreuung, § 8 BtBG – BetreuungsbehördenG  Personal Interview of the person concerned by the Judge, usually at the permanent residence of the person, not in the Court, § 278 sec. 1 FamFG  If necessary, nomination of a Supporter for the Procedure („Curator“), § 276 FamFG

Betreuung – important principle for access to justice:  Anybody who is affected by a procedure of Betreuung has – no matter about his actual capabilty – legal capacity to act in the procedure, § 275 FamFG  Any declarations, applications or complaints of the disabled person have to be considered and dealt with by the „Betreuungsgericht“ as legally valid interventions

Betreuung – Procedural Steps (2)  Experts‘ Certificate about the necessity of Betreuung, including the affairs to be covered (usually by a Doctor for Psychiatry), § 280 FamFG  The Local Authority, Spouses, Parents, Children who are involved, or anybody nominated by the person concerned are offered to tell the Court their opinions, § 279 FamFG  „ Final Conversation“ of the Judge (§ 278 sec. 2 FamFG) with the person concerned, explaining  The results of the procedure  The scope of tasks for Betreuung  Who is to be appointed as „Betreuer“

Discussion on Art. 12 CRPD in Germany The disability community is calling for:  Research about the practical implementation of Betreuung in Germany: Are the principles of necessity and subsidiarity recognized sufficiently in light of 1,3 million cases of Betreuung?  Create and try out structures of assistance for supported decision-making to avoid court measures of Betreuung  Legal investigation about crucial regulations such as  §§ 104, 105 Civil Code (Inability to contract)  § 1902 Civil Code (legal representation by the Betreuer)  § 1903 Civil Code (reservation of consent)  § 1905 Civil Code (sterilization)  § 1906 Civil Code (detention)  § 13 BWahlG (right to vote)

Development of the law on Betreuung with regard to Art. 12 CRPD  Draft bill to provide for an improved role of the local authority for Betreuung before and during court procedures: The courts shall give notice to the local authority about each procedure of Betreuung and call for an investigation whether the appointment of a Betreuer is necessary. Secondly, the local authority shall be obliged to provide information and counseling prior to a court procedure of Betreuung.  Draft bill to specify legal requirements that entitle the court to allow a Betreuer to agree to a forced treatment of his ward. New legislation is neccessary after rulings of the german constitutional court stating that there is no sufficient legal basis to allow for substitute decision-making to consnet to forced medical treatment of a patient.

Betreuung – Implementation – Developments since 1992  Guardianships/Curatorships 1991 : ca  Betreuung :  Betreuung :  Betreuung :  15,79 cases per 1000 inhabitants  Annual Costs for expenses and salaries of professional Betreuers: 2004 : Euro 2007 : Euro 2008 : Euro

Betreuung (2009) New Cases of Betreuung: about /year Professionals: Independant Professionals 28,81 % Non-Profit Associations for Betreuung 5,79 % Local Authority for Betreuung 0,42 % 35,02 % Voluntary./. Professional Volunteers: Family Members 59,49 % Other Volunteers 5,49 % 64,98 %