Definition and Position of the Official Guardian
Der Official Guardian is an official representative for minors (underage persons), appointed by the family court, whose parental custody—either in full or in part—does not lie with the parents, but with a third party. The tasks and legal basis of the Official Guardian are primarily set out in the German Civil Code (BGB) as well as in the Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction (FamFG).
Often, the Youth Welfare Office is appointed as the Official Guardian as an authority, but in principle, any suitable person or entity may be appointed. The Official Guardian assumes all rights and duties of parental custody, unless a supplementary guardianship has been established or custody remains partially with the parents.
Legal Basis of the Official Guardian
Statutory Basis
The central statutory provision for the Official Guardian is § 1791b BGB. This refers directly to the process and appointment of an Official Guardian and sets out their remit. The FamFG stipulates the judicial procedure for the appointment of an Official Guardian in §§ 270 ff.
Grounds for Appointment
An Official Guardian is appointed in particular when:
- parental custody is completely withdrawn from both parents or the last remaining parent by the family court (§ 1666 BGB);
- the child is without parental custody (for example, in the case of unknown parentage or the death of both parents);
- the mother of a non-marital child is a minor and cannot exercise parental authority for the child.
Appointment and Duties of the Official Guardian
Types of Official Guardianship
- Full Official Guardianship: Assumption of all parental responsibilities
- Partial Guardianship or Supplementary Guardianship: Assumption of only certain aspects of custody (e.g. property management, determination of place of residence)
Appointment Procedure
The family court decides ex officio or upon application on the appointment of an Official Guardian. In accordance with § 1779 BGB, preference is given to the appointment of a suitable natural person (such as relatives or other individuals close to the child). If this is not possible or professionally appropriate, the court appoints the Youth Welfare Office as the Official Guardian. The appointment must be communicated to the child, the Youth Welfare Office, and other parties involved.
Scope of Duties of the Official Guardian
The Official Guardian represents the child in all matters of parental custody—personal custody (such as determination of residence, healthcare, upbringing) and property management (asset administration, assertion of maintenance claims, application for social benefits, etc.). The Official Guardian is also obliged to always act in the best interests of the child (§ 1697a BGB).
Rights and Oversight
The Official Guardian is accountable to the family court and is subject to regular oversight, particularly in financial matters. The court may issue instructions and, in certain cases, require an accounting. Decisions of particular importance for the child often require approval by the family court (§ 1850 BGB).
Termination and Change of Official Guardian
Reasons for Termination
The official guardianship generally ends when
- the child reaches legal age,
- parental custody can again be exercised by the parents or one parent,
- the relationship of official guardianship is dissolved by the family court (e.g., in case of adoption of the child),
- another guardian is appointed.
Change of Official Guardian
A change may be made upon application or ex officio, particularly if the welfare of the child appears to be at risk by the Official Guardian or if, following changes in circumstances, another person seems more suitable.
Practical Significance and Distinction from Related Institutions
Function in Relation to the Ward
The child for whom the Official Guardian has been appointed is referred to as a ‘ward.’ The Official Guardian essentially acts as the person responsible for care and is tasked with representing and promoting the interests of the child.
Distinction from Caregiver and Supplementary Caregiver
In contrast to official guardianship, a caregiver is usually appointed only for particular issues or aspects of parental responsibility. The supplementary caregiver supplements parental custody only in a specific area, whereas the Official Guardian exercises full parental custody.
Role of the Youth Welfare Office
The Youth Welfare Office, as the most common Official Guardian, acts through an appointed staff member. However, the Youth Welfare Office as an authority itself always remains the appointed guardian. In exceptional cases, the official guardianship may be transferred to other public or private entities.
Liability and Supervision
The Official Guardian is liable for damages arising from a breach of duty under general civil law regulations. As a public body, the Youth Welfare Office enjoys certain immunity privileges but must still be held liable for grossly negligent or intentional acts.
The family court exercises professional and legal supervision over the actions of the Official Guardian through regular reports and can intervene in the case of breaches of duty.
Literature and Web Links
- Civil Code (BGB), §§ 1773 ff.
- Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction (FamFG), §§ 270 ff.
- Social Code Book VIII (SGB VIII), § 55 f.
Note: The legal regulation of the Official Guardian is subject to continuous development. For specific cases of application, the current legal situation must be observed.
Frequently Asked Questions
When is an Official Guardian appointed?
An Official Guardian is generally appointed by the family court when parental custody for a minor child is suspended or withdrawn and no suitable individual guardian is available. This is the case, for example, when both parents are deceased, custody cannot be exercised, or the child’s mother is a minor and there are no competent parents. The appointment is based on §§ 1773, 1791b, 1897 BGB in conjunction with § 55 SGB VIII. The competent authority is the Youth Welfare Office, which then acts as the so-called ‘official guardianship’ for the child. The Official Guardian is appointed by court order and receives full parental rights unless these have been otherwise restricted or modified.
What specific duties and powers does an Official Guardian have?
The Official Guardian assumes extensive legal responsibilities otherwise assigned to a person with parental authority. These include, in particular, the statutory representation of the ward in dealings with third parties, decisions regarding residence and place of living, assertion of maintenance claims, management of the ward’s assets, decisions regarding schooling and training, as well as health matters up to and including medical treatment. The guardian is required to maintain regular personal contact with the child and to ensure the child’s welfare (§ 1800 BGB). Furthermore, the guardian always makes decisions with the child’s best interests in mind, and as the child grows older and more capable of understanding, their involvement must increase (§ 1909 para. 3 BGB). The Official Guardian is also subject to administrative and judicial oversight, must account for their activities, and submit reports at the request of the family court.
What rights and obligations do biological parents retain once an Official Guardian has been appointed?
Once an Official Guardian has been appointed, the rights and obligations of the biological parents regarding parental custody are fully or partially suspended. Custody is transferred—depending on the court’s order—completely to the Official Guardian, so parents can no longer make legal decisions for their child. However, parents retain the right to maintain contact with their child, provided this does not conflict with the child’s welfare. They also have the right to information and to be heard within the framework of the guardianship court proceedings. In some circumstances, the court may leave specific areas of custody with the parents (‘participation’), but this is an exception (§ 1630 BGB). The obligation to pay maintenance generally remains; however, the exercise of representation rights in maintenance matters may be withdrawn from them.
Is the Official Guardian required to maintain regular personal contact with the ward?
By law, the Official Guardian is required to meet the child personally and to maintain regular contact (§ 1800 BGB and § 55 para. 2 SGB VIII). The Federal Administrative Court and numerous state youth welfare offices explicitly demand not only formal-administrative interaction, but active relationship-building to safeguard the child’s welfare. The frequency depends on the needs, age, and situation of the child or young person. A personal meeting should take place at least once per quarter, but typically monthly, to obtain an adequate view of the child’s development and living circumstances and to intervene supportively as needed.
Is the Official Guardian subject to oversight and how is this exercised?
The Official Guardian is subject both to oversight by the family court and to internal supervision within the Youth Welfare Office. The family court can regularly request reports and accounts (§§ 1837 ff. BGB). In addition, for certain matters, such as consent to marriage, adoption, or major asset transactions, court approval is required (§§ 1643, 1821 BGB). Internally, the Youth Welfare Office typically provides a two-step review process by other caseworkers to prevent abuse or misjudgment. Violations of statutory requirements or obvious misconduct may result in withdrawal of official guardianship.
Can the Official Guardian be removed or replaced?
An Official Guardian can be removed at the request of the Youth Welfare Office, the parents, eligible persons, or the ward themselves by court order if there is an important reason as defined in § 1886 BGB. This may be the case, for example, in cases of conflict of interest, gross neglect of duty, or unsuitability of the guardian. The Youth Welfare Office can also reappoint guardians as part of its organizational structure but must inform and justify each change to the family judge. Removal or replacement must always be assessed in the best interests of the ward.
Do minors or young people have a right to be heard by the Official Guardian?
According to § 1909 BGB, the Official Guardian is obliged to include children, and especially young people, in decisions that concern them and to give due consideration to their wishes. From the age of around 14, the independent opinion of the minor is given particular legal weight, especially in matters of residence, education, or religious issues. The child can approach the family court in case of disagreements. Furthermore, the statutory principle of participation (§ 8 para. 1 SGB VIII) must be observed, which aims to promote the development of an independent and community-minded personality.
