The care law will be fundamentally reformed in the new year. The aim is to strengthen the right to self-determination and the autonomy of people in need of support. That changes for those affected.
With the legal changes that will come into force on January 1st, 2023, the government is comprehensively modernizing the applicable childcare law. The reform involves the most extensive changes since the introduction of the guardianship law on January 1, 1992. The aim is to significantly strengthen the right to self-determination and the autonomy of around 1.3 million people in Germany.
When examining the necessity of appointing a caregiver, the focus in future will be less on the medical identification of deficits and more on the individually and concretely determined need for support of the person in need. In addition, the reformed care law guarantees the person being cared for more self-determination during care and is more oriented towards their wishes. Because up to now, according to the applicable law, the supervisor has to take care of the affairs of the person being looked after in such a way that, viewed from the outside, it corresponds to his or her well-being.
In the future, however, the wishes of the person being cared for or their presumed wishes will be at the forefront of the caregiver's actions. The suitability of the custodian to provide care and exercise judicial supervision must also be based on the wishes of the person being cared for. This is particularly true in the context of approval procedures.
In summary, it can be said that the new law ensures that the person concerned is better informed and more closely involved in all stages of the care procedure. This concerns, among other things, the court decision on whether and how the guardian is appointed, the selection of the specific guardian and his control by the guardianship court.
At the same time, the reform strengthens supervision and control because the judicial supervision pays more attention to determining the wishes of the person being cared for. Breaches of duty by the caregiver, especially those that affect the self-determination of the person being cared for, should be better recognized and sanctioned.
For caregivers, the care law reform will also result in changes. In the future, professional supervisors will have to register with a supervisory authority and prove that they meet the minimum personal and professional suitability requirements. Volunteer caregivers who have no family or personal ties to the person being cared for should join a caregiving association that can advise and train them.
According to current law, spouses can neither make decisions about medical treatment for their partner who is no longer capable of acting nor represent him in legal transactions. To do this, they previously had to be appointed as their partner's legal guardian or be effectively authorized to do so by him or her within the framework of a power of attorney.
However, such a judicial procedure for appointing a guardian can mean an additional significant burden for those involved, especially in the initial period after an accident or a sudden serious illness.
From January 1st, 2023, spouses will be able to help each other more easily from a legal point of view: the options for assistance in acute or emergency situations will be improved so that spouses have the opportunity to temporarily represent the spouse who is unable to act in an illness situation.
Important: This new so-called "emergency representation right for spouses" is limited to matters of health care and matters closely related to it. It assumes that the attending physician has confirmed that the represented spouse cannot legally take care of these matters due to unconsciousness or illness. If a person other than the spouse has been authorized in a living will or power of attorney, they shall otherwise take precedence. The "emergency representation right for spouses" does not "overrule" a power of attorney or disposition.
In principle, if an adult is unable to take care of their affairs in whole or in part because they are ill or have a disability, they must be protected from dangers that affect their person and their assets in particular. This protection is guaranteed by the so-called supervision.
The guardianship court appoints a guardian who acts legally for the person in need within a precisely defined scope, the so-called task groups. Before the guardianship court decides on the appointment of a guardian, it must obtain an expert opinion on the need for guardianship. This also applies to apparently obvious illnesses or disabilities.
The supervisor then represents the person being looked after in and out of court within the scope of his or her area of responsibility. This means that a supervisor must be appointed if legal representation of the person concerned is required.
However, it is not a prerequisite that the person concerned is legally incapacitated! It is sufficient that the data subject needs support to assert his own rights. And even then, the appointment of a supervisor is only permissible if no other adequate forms of support are available to the person concerned. Care is therefore subordinate to other forms of support. These other, priority forms of support include the spouse's right of emergency representation, which was newly introduced as a result of the reform of the care law: If the spouse has a right of representation, the appointment of a caregiver is not permitted.
In addition to the need for care, there must also be a need for care. While the need for care refers to the inability of the person concerned to take care of his or her affairs, the need for care relates to the specific matters to be taken care of.
The guardian may only represent the person in need of care in and out of court in the areas of responsibility assigned by the court. Before the court assigns an area of responsibility to a supervisor, it must always be checked to what extent the skills of the person concerned are sufficient to cover the need for action. In this context, the specific clinical picture of an illness or disability is decisive.
If the person concerned can manage his affairs independently, the court may not appoint a custodian even if the person concerned requests this. If the person concerned is unable to regulate certain matters without the illness or disability, for example because of the complicated legal matter or because of a language barrier, then he does not need care.
In addition, no supervisor may be appointed against the free will of the person concerned. This is only possible for minors under certain conditions.
Maike Backhaus is a tax expert at Wolters Kluwer's Steuertipps.de portal.
(This article was first published on Sunday, November 13, 2022.)
