What does a legal guardian do? Tasks and rights explained.
Short answer: A legal guardian supports adults who are unable to manage their own affairs – for example, due to illness or disability. The guardian only performs those tasks specified in the guardianship order and always acts in the best interests of the person under their care.
When a family member suddenly becomes unable to manage their own affairs, relatives are often faced with many questions. What decisions can a legal guardian make? Which tasks do they undertake – and which do they not? And how does the guardianship process actually work?
This article answers the most important questions about legal guardianship. It is aimed at both those affected and their relatives who want to understand what guardianship means, what rights are associated with it, and how cooperation with a guardian works.
What is legal guardianship?
Legal guardianship is a court-ordered support measure for adults who, due to a mental illness, disability, or other impairment, are wholly or partially unable to manage their own affairs. This is regulated in Section 1814 of the German Civil Code (BGB).
It is important to know that guardianship is not the same as deprivation of legal capacity. The person under guardianship generally retains their capacity to act and may continue to make their own decisions – unless the court expressly orders a reservation of consent.
The guardian is appointed by the guardianship court and receives a clearly defined scope of duties. Outside of this scope, the guardian has no authority.
What are the responsibilities of a legal guardian?
The duties of a legal guardian depend on the individual guardianship order. Typical areas of responsibility include:
1. Asset management
One of the most common tasks is managing finances. The supervisor takes care of:
the management of bank accounts and investments
the payment of rent, bills and everyday expenses
applying for social benefits such as basic income support or housing allowance
the preparation of an annual statement of account for the guardianship court
The guardian is obliged to carefully manage the assets of the person under guardianship and may under no circumstances use them for their own purposes.
2. Healthcare
In the area of healthcare, the caregiver makes decisions that affect the medical care of the person under their care. These include:
consent to medical treatments or operations
the organization of doctor's visits and hospital appointments
the decision regarding medications and therapies
The following applies: The guardian must always consider the will and wishes of the person under their care – even if that person is no longer fully able to express them. Previous written declarations, such as an advance healthcare directive, are binding.
3. Determination of residence
If the legal guardian is responsible for determining the place of residence, they decide where the person under their care lives – for example, whether a move to a nursing home is necessary and appropriate. Such decisions must be well-founded and coordinated with the guardianship court.
4. Official and legal matters
Many people receiving support need assistance dealing with government offices and authorities. The support worker's responsibilities in this area include, among other things:
communication with the social welfare office, the health insurance company or the pension insurance provider
the submission of applications and the lodging of appeals
the representation of the legal interests of the person under guardianship
5. Housing matters
This includes managing rental agreements, terminating a tenancy (with court approval), or organizing removals.
What is a legal guardian NOT allowed to do?
A common misconception: A legal guardian is not a legal representative or a representative in all aspects of life. They may only act in the areas assigned to them by the court.
Furthermore, there are certain decisions that even a guardian may only make with the express permission of the guardianship court – for example:
consent to a measure restricting freedom (such as restraint in a nursing home)
the termination of a rental apartment
the execution of larger asset transactions
Without this authorization, such actions are legally invalid.
How is a legal guardian appointed?
The guardianship process usually begins with an application – either by the person concerned, by relatives, or by the court on its own initiative. The guardianship court then obtains a medical report and conducts a personal interview with the person concerned.
Who is appointed as guardian? The court generally prefers individuals from the person's social circle – that is, family members or close confidants. If no one from the personal circle is suitable or available, a professional guardian is appointed.
The guardianship is reviewed regularly by the court – usually at least every seven years. If the guardianship is no longer necessary, it is revoked.
Rights of the person under guardianship
Guardianship does not automatically restrict the rights of the person under guardianship. The most important rights include:
The right to self-determination: The guardian must follow the wishes of the person under guardianship, provided these do not contradict the person's well-being.
The right to information: The person under guardianship has the right to be informed about all decisions made by the guardian.
The right to complain: If the person under guardianship is dissatisfied with their guardian, they can file a complaint with the guardianship court or request a change of guardian.
What can family members do?
Family members play an important role in the guardianship process. They can:
to submit an application for guardianship if the person concerned is unable to do so.
be nominated as a supervisor
to provide the court with information about the will and wishes of the person concerned
Support the guardian and, if necessary, contact the guardianship court.
Important: Relatives do not automatically have the right to make decisions for an adult family member. This requires an official power of attorney (advance healthcare directive) or a court-ordered guardianship.
The most important information at a glance
Legal guardianship is a valuable support measure – but not a form of disenfranchisement. The guardian always acts in the best interests of the person under guardianship, respects their wishes, and is accountable to the guardianship court. It is worthwhile for those affected and their relatives to gather information early and, if necessary, draw up a power of attorney – because this can often prevent court-appointed guardianship altogether.
Do you have further questions about legal guardianship? We are happy to help – simply contact us!
Frequently Asked Questions (FAQ)
What is the difference between a legal guardian and a person with power of attorney? A person with power of attorney is appointed by the individual concerned – that is, in advance and while still of sound mind. A legal guardian, on the other hand, is appointed by the court if no power of attorney exists or if it is insufficient.
Can I choose my own legal guardian? Yes. The court takes into account so-called guardianship wishes. Anyone who wants to specify in advance who should be appointed as their guardian in an emergency can record this in writing in a guardianship directive.
How much does legal guardianship cost? Professional guardians receive a legally regulated fee, which is paid from the assets of the person under guardianship or – in cases of indigence – from public funds. Volunteer guardians are entitled to a flat-rate expense allowance.
How long does legal guardianship last? Guardianship is generally ordered for a limited period and reviewed at least every seven years. It ends as soon as it is no longer necessary – for example, because the person under guardianship can manage their own affairs again.
What happens if I am dissatisfied with my guardian? Those affected can apply to the guardianship court for a change of guardian. The court will then examine whether there is a valid reason for the change.
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