GERMANY

IntellectualDisabilityandGuardianshipandUNCRPD

I.

Introduction

Germany is aState Partyto theUN CRPDandtheOptionalProtocol. ANational ActionPlan(NAP)

to implement the UNCRPD was approved by the Federal Government [Link] state
reportwaspublishedinAugust2011andreferredtotheappropriatecommittee.
The UN CRPD is deemed to be binding law in the Federal Republic and in the federal states
(Lnder).Itestablishesagreatneedforactionbecauseaconsistenthumanrights perspectivehasnot
yet been adequately implemented in German policy and legislation concerning persons with
disabilities.
In itsmemorandum, theFederalGovernment [Link]
maintains, for example, that German law pertaining to the denial of liberty through enforced
institutionalisation already fully satisfies the guidelines of the CRPD(Art.14) and alsotheGerman
education system already identifies numerous similarities with the CRPD (Art.24).TheStanding
Conference oftheMinistersof EducationandCulturalAffairs ofthe Lnderin theFederalRepublic
ofGermany
alsotooktheviewthattheGermanlegalpositioninprinciplesatisfiestherequirementsof
[Link],theFederalGovernmentisactingconsiderablylessfirmlydomestically
thanithasdoneatinternationallevelintherunuptotheadoptionoftheConvention.

[Link]
Current national disability strategy or action plan:

 Der

Nationale

Aktionsplan

der

Bundesregierung

zur

Umsetzung

der

UNBehindertenrechtskonvention[National DisabilityActionPlanfortheImplementationof
theUNConventionontheRightsofPersonswithDisabilities],
Other important national laws, policies or strategies concerning disabled people and disability
issuesinclude:
General Equality Act(2006) applies to disabled people and other groups, it guarantees the
right to nondiscrimination in employment, education, access to goods andservices,buying
and renting property. It rules that public authorities and private business have the duty to
monitor and promote equal rights,onthegroundsofdisabilityas wellasage,gender,sexual
orientation,race,ethnicity,religion,andbelief1.
Federal Disability Equality Act(2002)2 guarantees disabled people the right of access to
public places and buildings, public transport, the internet and political elections. It
guarantees the right to communication, and acknowledges sign language as an official
language. Italsorulesthatthespecialneedsofdisabledwomenareto [Link]
also regulates both function and tasks of the Federal Ombudsperson for People with
Disabilities,
The Social Code Book IX(2001) 3is a framework legislation and covers the main areas of
social law, i.e. social insurance and social assistance. It marks a turning point in German
disability policy, namely the shift fromtheprinciplesofcareandwelfare(Frsorge)tothe
ones of selfdeterminationandparticipation(SelbstbestimmungundsozialeTeilhabe).The
law guarantees comprehensive social rights for disabled people it also entails gender
specific regulations. In general, it aims at establishing social inclusion, participation and
selfdetermination for disabled people(BundesministeriumfrArbeitundSoziales,2006,p.
27)

1
2
3

[Link]
h
ttp://[Link]/bgg/[Link]
.

[Link]
.

 In 1994 the German constitution (Grundgesetz) was amended. Article 3 (3) of theBasic
Law forbids discrimination on the ground of disability4. Post the amendment actions have
beenbroughtagainstpersonsonthegroundsoftheadditionoftheclause.
Other important national laws cover the area of employment and aim at labour market
integration. The Act on the Promotion of Severely Disabled Peoples VocationalTrainingand
Employment(2004) aims at improving the employment rate of disabled persons. Its target
grouparemainlyyoungpeoplewithsevere

III.
NationalCRPDMonitoringBody:Germany
NationalMonitoringBodyfortheUN
Convention
ontheRightsofPersonswithDisabilities
The National CRPD Monitoring Body is an independent body which promotes respect of the
rights of people with disabilities and implementation of the UN
Convention on the Rights of
PersonswithDisabilities(UNCRPD)inGermany.
Article 33, paragraph 2 of the UN
convention requires its signatory states to establish an
[Link] NationalCRPD
MonitoringBodyattheGermanInstituteforHumanRightsinMayof2009.5
WhodoestheNationalCRPDMonitoringBodyworkwith?
The National CRPD Monitoring Body works closely with the key federal and state ministries
involved in the implementation of the
convention and with the federal and state officials
responsible for affairs relating to persons with disabilities, as well as with disability advocacy
organizations (see also Civil Society Consultations LINK). The National CRPD Monitoring

[Link]
.

[Link]

Body also exchanges information on disabilityrelated issues with other European national
humanrightsinstitutionsonaregularbasis.
Another of the National CRPD Monitoring Body's duties is to report on Germany's
implementation of the
convention to the UN Committee on the Rights of Persons with
Disabilities. This Genevabased committee reviews the implementation of the
convention on a
regularbasis.

[Link]/ProxyDecisionMaking
The Betreuungsgesetz (Guardianship Law in English) is part of the Brgerliches
Gesetzbuch(BGB)([Link]).
The Guardianship Law, which came into force in January 1992, was the result of the Act to
Reform the Law Concerning Guardianship and Curatorship for Adult Persons of 12
September 1990. It is generally considered to be a vast improvement on the previous
provisionsforguardianshipandcareofthefrail.
Prior to the implementation of the new system of guardianship, a person could be declared
legally incompetent and this wouldlead toanautomaticlossoftherighttovote,marry,write
awill,carryoutabusinessandevenlegitimatelypurchaseclothesorfood.
AccordingtoBGB1896,aguardianshipcourtappointsaguardianforapersonwhocannot
takecareofhisorheraffairsinfullorinpart,duetomentalillnessoraphysical,mental,or
emotionaldisorder6

[Link]
6

In2002,theBGBwassupplementedby105a,addressingtransactionsofdailylife,aimedat
improvingthelegalpositionofadultpersonswithoutactivelegalcapacitybyenablingthemto
7

participateinlegaltransactionstoalimitedextent.
Thesearethetransactionsofdailylifethat
canbeconductedwithfewfunds,inwhichperformancebythepersonwithoutactivelegal
capacityandcounterperformancearestillrequiredforthevalidityofthetransaction.
Transactionsofdailylifearethetransactionsrequiredtosatisfythebasicneedsofapersonit
mustbepossibletocarryoutsuchtransactionswithlimitedfunds,andthefinancialstatusofthe
8

personisnottobeconsidered.
Transactionsthatrepresentamajorriskforthepersonwithout
9

activelegalcapacityorhisorherpropertyareexcluded.

The process of automatically declaring a person legally incompetent as part of the process of
guardianship has been abolished in favour of a more flexible approach to guardianship based
on the particular needs and abilities of the person under guardianship and is more geared
towardsselfdetermination.
Conditionsforappointmentofaguardian
According to 1896 of the Civil Code, a guardiancanbeappointedbytheGuardianshipCourt
if due to a psychiatric illness or mental impediment an adult iswhollyorpartlyunabletolook
afterhis/herownaffairs.
A guardian is only appointed for tasks for which guardianship is necessary. If the person's
affairs could be managed equally satisfactorily in a way other than by appointment of a legal

H. Drner. BrgerlichesGesetzbuch. Handkommentar. 3. Aufl. 2003, 105a, Rn 1.

7
8 12 BT Drucksache 14/9266, p. 43
9 13 O. Palandt, H. Heinrichs. BrgerlichesGesetzbuch. 62. Aufl. Mnchen 2003, 105a, sec. 5; H. Drner (Note 11), 105a
Rn

representative, this should be done. Similarly, if a person merely needs help with household
tasks or to leave the house, this should be arranged,withoutthisnecessitatingtheappointment
ofalegalrepresentative.
Howguardianshipisarranged
The judge in charge of the guardianship case must obtain a medical report from a neurologist
or psychiatrist and may also request a report on the persons social environment. S/he then
visits the person in their familiar environment, which is usually at home, and listens to their
views. The judge also interviews relatives and others who are closely linked to the person in
order to find out their views about the possible guardianship measure. The procedure for
appointingaguardianisusuallyfairlylengthybutitcanbespeededupincaseofemergency.
Whocanbeaguardian
If guardianship is considered necessary, the Guardianship Court appoints a person who is
deemed capable of suitably looking after the person and his/her affairs. If the person to be
placed under guardianship proposes a particular person, the Court must respect this decision
unless it is judged to run counter to his/her personal well being. A proposal not to appoint a
certain person should also be taken into account by [Link]
in which the wishes ofapersonareexpressed(withregardtothechoiceofguardianshouldthe
situation ever arise), s/hemusthanditover totheGuardianshipCourtwithoutdelayonhearing
that proceedings are underwayorthataguardianhasbeenappointed.A doctorcanapplytothe
Guardianship Court only if thepatientgivespermission,unlessthe doctorisoftheopinionthat
thepatientcouldharmhim/herselfwithoutaguardian.
If the person, for whom guardianship is being arranged, does not propose anybody, the Court
will usually take into consideration his/her spouse or children, bearing in mind the possible
conflict of interests that this may entail. A guardian must declare that s/he is willing to be a

guardian before taking up the duty. OncetheCourthasdecidedonapersontobethe guardian,

this person isobligedtotakeontheguardianshipdutiesprovidedthatthiscanbeexpectedwith
regardtohis/herfamily,professionalandothercircumstances.
The Court can decide to appoint more than one guardian if this would mean that the person's
affairs could be managed more efficiently this way. The duties and responsibilities of each
guardiancanbespecified.
Moreover, the Court can also appoint several guardians so that only one looksaftertheaffairs
of the person, but another can take over if the first is prevented from doing so or transfersthe
dutytohim/her.
Ifguardianshipcannotbeensuredbytheappointmentofoneormoreindividuals,theCourtcan
appoint an association or, failing this, an authority. An association can then transfer
guardianship duties to individuals, bearing in mind any proposals made by the person under
guardianship.
Thedutiesandresponsibilitiesofguardians
Thedutiesoftheguardianarestipulatedin1901(CivilCode):
"The carer will look after the affairs of the person cared for in the way his/her welfare
requires. The welfare of the personcaredforalsoincludesthepossibility ofarranginghis/her
lifewithinthescopeofhis/hercapabilitiesinaccordancewithhis/herownwishesandideas."
The guardian willcomplywiththewishesofthewardifthisdoesnotconflictwiththelatter's
welfare and if it can be expected of the guardian. This also applies to desires that the ward
expressed before the guardian was appointed unless s/hedemonstrablydoesnotwishtokeep

to this desire. The guardian will discuss important matters with the ward before discharging
them,insofarasitdoesnotconflictwithhis/herwelfare.
Amongst his/her duties, the guardian will ensure that every opportunity is usedtoremoveor
improve the condition or impediment of the ward, to prevent its deterioration or to mitigate
itsconsequences.
The guardian will notify the GuardianshipCourtof anycircumstancesofwhichs/heisaware
that will facilitate suspension of guardianship. The same applies to circumstances that
facilitate a restriction of the extent of his/her range of duties or require their extension, the
appointment of [Link]
thedutyoftheguardiantorepresentthewardatlawandotherwise.
Howthefinancialaffairsofthepersonunderguardianshiparehandled
If the guardian has responsibility for handling the ward's financial affairs, s/he must provide
the Court with a complete list of the ward's [Link]
how often this should be done. If the guardians arerelatives,theyonlyneedtoprovideproof
the financial situation when the Court demands it, but at least every two years. The ward is
entitledtodemandtoseethislistwhenevers/hewantsto.
Money should be put into an account which can only be accessed with the authorisation of
the Guardianship Court. Financial investments can only be made with the approval of the
Court. If there is a current account, the guardian can withdraw money without authorisation
from the Guardianship Court provided that there is not more than a specified amount in the
account (EUR 3,000). If the guardian is the ward's spouse or a relative withdrawals can be
madewithoutauthorisationforlargeramounts.
Numerous authorisations are necessary for the purchase and sale of a piece of ground
belonging to the [Link] guardian

and the ward, the guardian cannot act on the ward's behalf with regard to this contract. In
such cases, the guardian must contact the Court so that an additional guardian can be
appointedtodealwiththismatter.
Measurestoprotectthewardfrommisuseofpower
The guardian must submit a statement on the financial state of affairs of the ward. This
should be accompanied by a report on the personal situation of the ward, e.g. how frequent
the guardian has contact with him/her, his/her place of residence, his/her state of health,
whether it is likely that guardianship will continue to be necessary andwhethertheextentof
theguardianshipshouldbereducedorextended.
The guardian can only act within the area of competence agreed by the Guardianship Court.
If s/he feels that the ward needs assistance in otherareas,s/he mustinformtheCourtandnot
take care of the task him/herself. If the guardian is unsure whether something lies within
his/herareaofcompetence,s/hemustcontacttheGuardianshipCourt.
In rare cases, if the ward seems to be a danger to him/herself or assets, the Guardianship
Court can order a "reservation of consent". This means thats/hecanonlymakeadeclaration
of will with the consent of his/her guardian. This protective measure is similar to measures
designedtoprotectminorswhencarryingoutbusinesstransactions.
There is a clause in the Civil Code (1907), which states that the guardian must obtain
authorisation before terminating a rental agreement for the ward's accommodation. This
measure is designed to protect the ward from the adverse effects of losing a trusted
environmentandcircleofacquaintances.
Compensationandliabilityofguardians

A normal guardianship case for a person living in a flat with no money would cost EUR
1,848. Guardians who are relatives or volunteers are entitled to a payment of EUR 323 per
year to cover various costs such as transportation and telephone calls. If the ward has more
than EUR 2,600, s/he must cover this cost. If the ward has more than EUR 2,600, s/hemust
coverthiscostotherwiseitispaidbytheState(InternationalGuardianshipNetwork,2008).
Guardians are responsible for any loss or damage suffered by the ward due to their actions
but some communes provide volunteer guardians with an insurance against this (Marburger
VereinfrSelbstbestimmungundBetreuung,2008).
Durationofguardianship
ThedurationoftheguardianshipissetbytheCourtandcannotbelongerthansevenyears.
Therighttoappeal
If a ward, who has not lost his/her legal competence, disagrees with a decision made by a
guardian,s/hecancontacttheCourtsinordertoappealagainstthedecision.
Powersofattorney
A durable power of attorney (known as a Vorsorgevollmacht) is a power of attorney which
only becomes valid when the personwhowroteitisnolongerabletohandlehis/herfinances
and other matters. The person who writes the durable powerofattorney canlimitthe powers
of the future attorney to certain matters. People holdingapowerofattorneyarenotroutinely
controlled.

LegalCapacityinspecificdomains
Marriage

A person has the right to contract a marriageprovidedthats/hehasnotbeendeclaredlegally

incompetentinthesenseof"Geschftsunfhig"(BundesministeriumderJustiz,1996).
Votingcapacity
According to article 12 Bundeswahlgesetz (BwahlG), every person who has reached the age
of18hastherighttovote.
A person who is under guardianship retains the right to vote unless, as stated in the Federal
Electoral Law of 1993, s/he is under completeguardianshipinallmatters([Link]
beenappointedtoattendtoallhis/heraffairs).
People who are currently detainedinapsychiatrichospitalunderarticle63ofthePenalCode
alsolosetherighttovoteaccordingtotheFederalElectionLawof1993.
Contractualcapacity
The legal validity of business transactions is determined by the legal capacity of the people
making it. According to paragraph 104 of the Civil Code, a person is deemed legally
incompetent (Geschftsunfhig) if s/he is incapable of free determination of his/her will due
to a pathological disturbance of mental activity and if this condition, by its nature, is not
temporary.
There is no system of relative incompetence. However, a person may be partially
incompetent whichmeansthats/hemaybeabletocarryouttransactionsormakedecisionsin
a certain domainbutnot [Link],
provided that s/he has the authority to act in this domain. If a person who has beendeclared
legally incompetent makes a declaration of will, it can be declared invalid (105 Abs.1

BGB/Civil Code). This also applies if the person who made it was in a state of
unconsciousnessortemporarydisturbanceofthemind.
Testamentarycapacity
A person cannot make a will if due to a pathological disturbance of his/her mind, mental
deficiency or a disturbance of consciousness, s/he isunabletounderstandthemeaningof the
willandactaccordingly(2229Abs.4BGB).
Making a will is therefore linked to the concept of mental incapacity. As such, it is not
affected by the mere naming of a guardian or by the "reservation ofconsent".Anybodywho
wantstohaveawilldeclaredinvalidmustprovethatthepersonwhomadeitwasincapableat
thetimeofwriting.
If a person makes a will with the help of a lawyerorinanemergencysituationwiththehelp
of other people, the lawyer or those people must assess the testators mental capacity.
Without deciding whether s/he has testamentary capacity, they must simply record any
indications they detect of a possible lack of such capacity (28 Beurkungsgesetz) ( Lipp,
2008).
Civilresponsibility
As with a criminaloffence,apersoncannotbeheldresponsiblefordamagetoanotherperson
or his/her property if s/he (the perpetrator) is suffering from incapacity due to mental
disturbance or diminished responsibility. This is covered by 827 of the Civil Code which
states that a person is not responsible for any damage s/he causes if s/he was in a state of
unconsciousness or suffering from a pathological condition of disturbance of mentalactivity
thatpreventstheexerciseoffreewillatthetimethedamagewascaused.

Family members are not responsible either in that each person can only be held responsible
for his/her own actions. Nevertheless, the injured party may attempt to obtain compensation
from the headofthehousehold forfailuretopreventthepersonfromcausing [Link]
governed by 832 oftheCivilCodewhichstatesthatifthedamagewascausedbyaminoror
a major who on account of his/her mental or physical condition was under supervision, the
person responsible for his/her supervision is [Link],
the obligation to compensate for damage shallnotariseifs/hehassufficientlycarriedoutthe
task ofsupervisionorifthedamagewouldhaveoccurredevenifpropersupervisionhadbeen
carriedout.
Criminalresponsibility
According to the Penal Code, a person who commits a crime may be deemed to have acted
without criminal responsibility due to incapacity or may be given a lighter sentence duetoa
[Link]:
20 Incapacity due to mental disturbance A person who, when s/he perpetrates an act, is
unable, on account of mental disturbance, of farreaching disturbance of consciousness, of
mental deficiency or a serious mental abnormality of some other kind, to understand the
wrongfulness of the act or to behave in accordance with this understanding, acts without
criminalresponsibility.
21 Diminished responsibility If the capacity of the perpetrator to understand the
wrongfulness of the act or to behave in accordance with this understanding is considerably
diminished for one of the reasons described in 20, the punishment can be mitigated in
accordancewith49(1).

Paragraph 63 of the Penal Code states that if a person who has committed an illegal act is
suffering from mental incapacity or diminished responsibility, s/he may be committed to a
psychiatrichospitalorclinic.
This could occur if following an overall assessment, the Courtestablishesthats/hewouldbe
likely to commit a serious illegal act due to his/her condition, which wouldrenderhim/hera
dangertothepublic.

[Link],specificallyArt.12.
The number of legal guardianship arrangements is constantly increasing (1,200,000 cases in
late 2005 1,300,000 in early 2010). Many persons do not have an alternative to legal
guardianship: there is no easytoaccess, lowthreshold system to support persons to make
their own decisions. While German guardianship law includes a few references to the
principle of support, it is still based on the principle of substituted decisionmaking
[
ersetzende Entscheidung
]. Consequently, there is a need torepealthislawandintroduce the
mechanism of supported decisionmaking so that it is possible to implement Art. 12, Para.3
CRPD, which obliges States parties to make surethatpersonswithdisabilitiescanaccessthe
support they may need in order to exercise their legal capacities (supported
decisionmaking[
untersttzendeEntscheidung
]).

The stipulations regarding contractual incapacity in the German civil law are based on the
assumption that persons can be permanently in a state of pathological mental disturbance,
which prevents free exercise of will. These persons are excluded fromparticipatinginlegal
relations,andtheir declarationsofintentarenullandvoid([Link]),apartfromthe
exceptions defined in 105a BGB. These civil law provisions are notinlinewiththenotion

of legal capacity according to Art. 12, Para. 2 and 3 UN CRPD, which requiresthatevery
person has legal capacity and that the necessary support must be provided in order to help
them exercise their legal capacity. Characterizing a person as permanently contractually
incapacitatedisnotcompatiblewiththeUNCRPD.10

GermanyssubmissioninGeneralComments
Germany does not share the Committees basic assumption that Art. 12 of the
Convention affords unlimited capacity to exercise legal rights and duties to all
persons with disabilities. All persons have, as affirmed by Art. 12 para 1 of the
Convention, legal capacity in the sense of legal standing. But not all persons can
exercise those rights and duties. For instance, unconscious or comatose persons are
not able to exercise their rights nor can infant children [Link]
not everyone can be considered able to exercise his or her rights and duties in the
same way. The legal orders ofStatesPartiesrecognizethisfactbydifferentiatingthe
legal capacity to exercise rights and duties (describedaslegalagencyinNo.13of
the Draft General Comment) accordingtoageortheabsenceofthe necessaryability
to make decisions. Art. 12 para 2 of the Convention seems toendorsethisapproach
by stipulating that persons with disabilities enjoy legal capacity on an equal basis
with others. Where legal capacity in the sense of legal agency is recognized
according to the power of making decisions, as described above, such legal
provisions cannot be seenascontrary [Link]
the provision of support for persons with disabilities isthebestpossiblewaytohelp
them exercise their rights, Germany remains convinced that there are situations in
which persons with disabilities simply are not able to make decisions even with the

[Link]
10

best support available. Therefore, while representing a shift in focusfromsubstitute

decisionmaking to supported decisionmaking, the Convention could not and in
Germanys view does not rule out the possibility of substitute decisionmaking in
some cases. Most State Parties acknowledge in their legal systems the right of
parentsorlegalguardianstorepresentchildrenwithoutdistinctionastotheexistence
of a disability. Where adults are in need of support, such support may be given by
ordering legal representation or guardianship, also without distinction regarding the
existence of a disability. All forms of representation or guardianship exist for the
benefit of the supported person and may only be used according to the will and
preferences or the best interests of the persons concerned. Forthatreason,Germany
does notfinditappropriatetolabelnationallegislationdesignedfortheprotectionof
such persons as discriminatory. Likewise,theuseoflanguagelikeStatesmust...
which occurs throughout the document seems inappropriate. Any recommendations
given in General Comments should be identifiable as such and not be phrased as
legalobligations.11

[Link]

In German guardianship law, the legal guardian is obligated to the wishes, subjective
welfare and the rehabilitation of the person he or she is responsible for. At the same time,
the guardian in his/her set of tasks represents the person in court and out of court (Section
1902 BGB). Germanys guardianship law does contain elements of support, but is
characterized [Link].12par.3
UN CRPD, the State Parties consequentlymusttakeappropriatemeasurestoprovideaccess

[Link]
11

to support for persons with disabilities, which they may require when exercisingtheirlegal
capacity(supporteddecisionmaking)furtherlegalchangesarethereforerequired.
The regulations on legal incapacity in German civil law assume that persons may
permanently be in a mental state excluding them from the free exercise of will. These
persons are excluded from participating in legal affairs, their declarations of intent are null
and void (Sections 104 f. BGB). This is in contrast to the concept of capacity in Art. 12
paragraphs 2 and 3 UN CRPD, which requires the questionofcapacityforthefreeexercise
of will to be examined on a casebycase basis and the necessary support to create legal
capacitytobeprovidedwherenecessary.
German guardianship law must be developed in accordance with the concept ofsupported
decisionmaking. Access to supported decisionmaking must be made availabletopersons
withdisabilitieswithoutinterferingwiththeirrighttoselfdetermination.
The regulations on legal incapacity in German civil law must be correspondingly adapted.
This is also necessary because these regulations shouldnotonlyservetoprotecttheperson,
butalsotoprotectgenerallegalaffairs.

References
BundesministeriumderJustiz(1996),DasBundesministeriumderJustizinformiert:
DasneueBetreuungsrecht,KlettDruckG.m.b.H.
InternationalGuardianshipNetwork(2008),Guardianshipmeasuresinvarious
countries,unpublisheddocument
Lipp,Volker(2008),[Link],G.
(Ed.)(2008),Competenceassessmentindementia,SpringerVerlag,Wien,pp.
117119
MarburgerVereinfrSelbstbeimmungundBetreuung(2008)Website:
[Link]
[Link]

Draft General Comment on Article 12 of the Convention - Equal Recognition before
the Law & Draft General Comment on Article 9 of the Convention - Accessibility

[Link]
[Link]
cityandproxydecisionmaking/Germany
[Link]