Definition of Assistance in a Legal Context
The term assistance in German law refers to the support provided to a natural or legal person in the exercise of their rights or obligations. The function of assistance can be of either a private law or public law nature and encompasses various areas, including family law, social law, procedural law, as well as guardianship law. Usually, it involves a person who acts alongside or instead of a legal representative, assisting in the clarification of legal issues or enforcement of claims.
Assistance in family law
Definition of assistance in family law
In family law, the term “assistance” is of particular importance. The legal basis for assistance in family law is found particularly in the provisions of the German Civil Code (BGB) as well as in the Act on Proceedings in Family Matters and Matters of Voluntary Jurisdiction (FamFG).
Assistance pursuant to § 1712 et seq. BGB
A special form is the assistance according to § 1712 et seq. BGB. This refers to support established by the youth welfare office upon application by a single parent to determine paternity and/or to assert maintenance claims for the child. In this capacity, the youth welfare office acts as assistance for the child and represents the child’s interests to the specified extent. The assistance is limited to the mentioned matters and ends by operation of law when the relevant requirements are no longer met.
Legal Status of the Assistant
The assistant acts as the child’s representative externally (§ 1713 BGB), while parental custody remains in effect and is not restricted during the period of assistance. Parental involvement continues; the parent remains authorized for custody until representation is transferred.
Role of the Assistant in Custody Law
In matters of parental custody, an assistant can also be engaged, for example, when a parent brings along another person for support during hearings or discussions before courts or authorities, without granting them power of representation. In such cases, the assistant acts as a companion and supporter.
Assistance in social law
Representation and Assistance Function under SGB X
The concept of assistance also carries significant importance in social law. According to § 13 of the Tenth Book of the Social Code (SGB X), a person may bring an assistant when submitting an application or during administrative proceedings. The assistant may act in an advisory capacity and provide suggestions but is not permitted to take independent actions or sign documents unless a written authorization for representation has been granted.
Duties and Rights of the Assistant in Social Administration Proceedings
During social administrative proceedings, the assistant has the right to actively participate in discussions and hearings, ask questions, and provide oral support. Official decisions are always communicated to the party involved, even if an assistant is present, unless the assistant is also an authorized representative.
Differentiation: Assistant versus Authorized Representative
The assistant differs from the authorized representative, who, with statutory or private power of attorney, is empowered to make legally binding declarations for the represented person. Thus, the assistant remains supportive at all times without affecting the legal status of the person represented.
Assistance in Procedural Law
Assistance in Judicial Proceedings
In judicial proceedings, such as before civil and administrative courts, various codes of procedure (for example, § 83 of the Administrative Court Act, VwGO) allow an assistant to be involved. The assistant may make statements, ask questions, and, in agreement with the represented party, provide explanations, but only to the extent allowed by the court.
Assistance in Family Proceedings
In family procedural law, especially in child protection and custody proceedings, an assistant may be brought in to provide emotional or factual support to the person concerned. This enhances the capacity and confidence of the parties involved.
Assistance in Guardianship Law
Distinction from legal guardianship
Unlike a legal guardian, who is appointed by the court and vested with statutory duties, the activity of an assistant takes place outside of formal judicial orders. An assistant can be commissioned through a power of attorney or simply chosen by inclusion.
Other Forms of Assistance
Assistance in Criminal Law
In criminal proceedings, the term “assistant” is used when a person accused or injured is assigned a trusted person for support. The assistant’s role here is not legal defense but rather accompanying and supporting the exercise of rights in the criminal process.
Assistance in International Law
In international law and administrative proceedings, a supporting person, for example during applications or hearings before international organizations, may also act as an assistant.
Assistance in Case Law and Literature
Judicial decisions and legal literature provide extensive commentary on the concept of assistance in connection with the aforementioned provisions. Particularly in family law, assistance is seen as an important tool to protect and enforce the rights of minors and persons in need of protection.
Conclusion
Der assistance is a central concept in German law with broad fields of application. Its essential function is to support, advise, or accompany individuals in personal or legal matters, without necessarily assuming legal representation. The precise form and legal authority of the assistant depend on the respective area of law and are determined by the relevant statutory provisions. In all areas, the assistant helps to effectively safeguard the rights and interests of the supported person and improve access to justice.
See also:
Frequently Asked Questions
Who can apply for legal assistance?
Generally, any person of legal age and capacity who requires support in exercising their rights and interests, for example due to limited decision-making ability, physical disabilities, or difficult life situations, can apply for legal assistance. This is particularly common in the area of social assistance or in family law matters. The application can be submitted independently or with the help of a representative. For minors or those not fully legally competent, parents or a legal representative usually submit the application. The responsible entity is generally the relevant local court, which will review as part of judicial proceedings whether the requirements for appointment of an assistant are met.
What are the duties of a legal assistant under German law?
The duties of a legal assistant are strictly governed by the powers of representation granted to them by the court or relevant authority. Typical tasks may include submitting applications, negotiating with authorities, or filing legal remedies. The assistant may only act within the scope of the tasks assigned and must consider the wishes and welfare of the person being assisted. Expansion of duties is only possible after a new judicial decision or with the explicit consent of the assisted person. The assistant is also subject to strict reporting obligations and may be held accountable if these are breached.
How does legal assistance differ from a guardian or curator?
The legal assistant differs fundamentally in scope of duties and legal position from a guardian or curator. Guardians or curators typically have more comprehensive rights and obligations, for example with full legal guardianship or when representing minors, whereas the legal assistant is usually responsible only for a specific, defined area of responsibility. Additionally, the guardian is appointed by the guardianship court and subject to more extensive oversight, while the assistant often acts on application and for clearly defined matters. This limits interference with the autonomy of the person concerned to only what is strictly necessary.
What requirements must be met for the appointment of an assistant?
Before appointing an assistant, the responsible court reviews whether the legal requirements are met. There must be a legitimate interest or necessity that concrete support is needed in specific legal matters, and no less intrusive option is available. This may apply, for example, if the person concerned is not able to exercise their rights independently, for reasons such as illness, age, or complexity of the situation. A medical certificate or proof of special life circumstances can serve as relevant evidence. It is also reviewed whether the proposed assistant is suitable and willing to take on the task.
What are the duties and liabilities of a legal assistant?
The legal assistant is required to carry out the assigned tasks with appropriate care and in consideration of the interests as well as the express wishes of the person concerned. They must not act beyond the designated scope of duties on their own authority. They are also subject to accountability to the court or appointing authority. If there are breaches of duty, such as neglect of tasks, misuse of position, or unauthorized action outside their powers, the assistant may be held liable. This may result in civil or criminal consequences, such as claims for damages.
How does an assistance arrangement end?
An assistance arrangement generally ends either upon completion of the assigned tasks, with the expiry of a specified period if time-limited, or by judicial or administrative termination order. The person assisted can also request termination, for example if the requirement for support no longer exists, such as after recovery or a change in circumstances. The assistant can also request to be released for valid reasons, such as their own illness or if the relationship of trust no longer exists. The court then decides after careful evaluation whether assistance will be ended or continued.
In which areas of law is assistance most frequently arranged?
In Germany, assistance is most commonly arranged in the areas of social law, family law, and civil law matters. For example, in family law, an assistant may be appointed to represent a child’s interests in maintenance or custody disputes. In social law, the assistant often advises and supports applications for social benefits, pensions, or integration measures. Assistance may also be sought for complex contractual matters or inheritance arrangements if the individual’s legal capacity to act is in question.
