Definition and Legal Classification of the Professional Guardian
Der Professional Guardian is a person appointed by the guardianship court, who, within the framework of legal guardianship under German law, represents or supports adults in legal matters when they are wholly or partially unable to handle their affairs themselves due to illness or disability (§ 1814 BGB). In contrast to the volunteer guardian, the professional guardian exercises guardianship as an independent profession and receives remuneration for this.
Legal Bases
The work of professional guardians in Germany is regulated by the German Civil Code (BGB), in particular §§ 1814 et seq. BGB, as well as by the Guardianship Organization Act (BtOG), the Administrative Procedure Act (VwVfG), and further regulations. The Act to Reform Guardianship and Custody Law (2023) has recently comprehensively redefined the legal framework.
Appointment and Requirements
Professional guardians are appointed solely by order of the guardianship court. The appointment is made by a formal court decision, which sets out the requirements and scope of the guardianship. Guardianship is only ordered when necessary and when no other assistance (such as powers of attorney) is available (§ 1814 para. 3 BGB).
Professional guardians must demonstrate personal suitability as well as expertise and reliability (§ 23 BtOG). Since 2023, professional guardians have been required to register, with specific requirements regarding a certificate of good conduct, evidence of expertise, and regular continuing education.
Duties and Obligations of the Professional Guardian
Die Activities of the Professional Guardian are determined precisely by the court’s appointment order and may include the following areas of responsibility:
- Personal care: Health care, determination of place of residence
- Asset management: Management and safeguarding of assets, handling contractual matters, processing payments
- Representation before authorities
- Processing matters relating to social benefits
- Housing matters: Renting, terminating, or changing the residence
Professional guardians always act in accordance with the “best interests of the person under guardianship” and must observe requirements to promote self-determination and preserve autonomy (§ 1821 BGB).
Control Mechanisms and Supervision
The work of professional guardians is subject to continuous monitoring by the court. Professional guardians must submit an annual activity report as well as accurate accounting of asset management (§ 1862 BGB). In the event of breaches of duty, the court can take measures up to and including removal.
Remuneration and Reimbursement of Expenses
Professional guardians are entitled to state-regulated remuneration according to the Guardianship Remuneration Ordinance (VBVG). The remuneration depends on qualification, effort, and the number of persons cared for (§ 7 et seq. VBVG). Costs are usually borne by the person under guardianship, provided their assets are sufficient; otherwise, the state treasury makes advance payment.
Distinction from Voluntary Guardianship
Professional guardians differ from voluntary guardians in that they receive remuneration for their work as their main source of income and usually supervise several persons at the same time.
Rights of the Person under Guardianship
The protection and rights of persons under guardianship are of central importance. Professional guardians may only act to the extent ordered by the court. Certain measures (e.g. deprivation of liberty, dissolution of accommodation, serious medical interventions) require a further court approval.
Registration and Quality Assurance According to BtOG
Since the Guardian Organization Act came into force, professional guardians must register with the guardianship authority (§§ 23-29 BtOG). The process includes checking personal suitability, reliability, and expertise, and requires proof of regular continuing education of at least 15 hours per year. Registration is valid for five years and must be renewed in a timely manner.
Proof of Education and Expertise
Expertise must be proven in the fields of law, social work, and administration through examinations, qualifications, practical experience, or specialist seminars. Existing professional guardians could make use of a transitional rule to recognize their previous activity until June 30, 2023.
End of Guardianship and Liability
Guardianship ends automatically upon the death of the person under guardianship or by court decision (§ 1899 BGB). Professional guardians are liable for gross breaches of duty and can be held personally liable for damages incurred. Liability claims are regularly covered by professional liability insurance.
Weblinks
- Guardianship Law (Federal Ministry of Justice)
- German Civil Code (BGB), §§ 1814 et seq.
- Guardianship Organization Act (BtOG)
- Guardianship Remuneration Ordinance (VBVG)
This entry provides a comprehensive and legally detailed overview of the term Professional Guardian in the context of German guardianship law and is tailored to the current legal framework.
Frequently Asked Questions
What legal requirements must be met to work as a professional guardian?
In order to work as a professional guardian in Germany, various legal requirements according to §§ 23 et seq. of the Guardianship Organization Act (BtOG) must be fulfilled. First, personal suitability is required, which includes reliability, a sense of responsibility, and the necessary physical and mental resilience. Since January 1, 2023, there is also a registration requirement with the locally competent guardianship court, introduced by the new Guardianship Organization Act (BtOG). For registration, proof of relevant prior education must be provided, either by having completed a degree in social pedagogy, law, or psychology, or vocational training with several years of professional experience in the social sector. In addition, regular continuing education and professional liability insurance must be proven. Furthermore, no prior conviction for an intentional offense that could call suitability into question may exist. After initial registration, the professional guardian is obliged to provide annual proof of continuing education as well as ongoing reliability checks. Recognition as a professional guardian is granted after all these requirements have been examined by the guardianship court.
To what extent is a professional guardian legally liable for their actions?
The liability of a professional guardian is generally governed by § 1833 BGB. The guardian is liable to the person under guardianship for all damages arising from a culpable breach of duty within the guardianship. This is particularly the case if they breach their obligations in financial matters, for example through incorrect asset management or failure to claim social benefits. The standard of care is determined by the knowledge and skills of a professional guardian. Of particular note is that professional guardians are personally liable for gross negligence and intent, while liability is generally limited in cases of simple negligence. For this reason, professional liability insurance is mandatory by law for professional guardians to provide compensation in the event of damage. In connection with asset management, they can also be held personally accountable in analogy to § 1908i para. 1 sentence 1 BGB. Incorrect guardianship court approvals do not exempt the guardian from liability.
What statutory limits exist for the duties and actions of professional guardians?
Professional guardians may only act within the areas of responsibility set by the court, which are governed by § 1896 BGB. These areas may include asset management, rights to determine place of residence, health care, or representation before authorities. The powers of the guardian are always limited to the specific and necessary affairs of the person under guardianship. Acting outside of these court-assigned responsibilities is not legally permitted and may result in the challenge or nullity of statements. In addition, professional guardians are subject to a requirement for court approval in certain cases, especially for special asset transactions under § 1907 BGB (e.g. sale of real estate). The guardian must regularly account for the measures taken to the court.
How is the remuneration law for professional guardians structured in detail?
The remuneration of the professional guardian is based on the regulations of the Guardianship Remuneration Act (VBVG). The amount of remuneration is determined by the hours actually worked, the guardian’s qualification, and the assets of the person under guardianship. The law distinguishes between different qualification groups (university degree, special training, without relevant training). A statutory rate per hour is paid. For financially capable wards, remuneration is paid from their own funds; otherwise, the treasury pays. In addition, expenses such as postage and travel costs may be reimbursed. There is entitlement to regular partial payments, and remuneration applications must be submitted to the guardianship court. The remuneration is conclusively regulated and payments deviating from legal provisions by agreement between the parties are not permitted by law.
What obligations to cooperate and provide information do professional guardians have towards courts and authorities?
The professional guardian is legally obliged to report regularly to the guardianship court, in particular in accordance with § 1840 BGB. An annual written activity report must be submitted, detailing all significant actions and decisions. There is also a duty, in the case of special decisions such as the accommodation of the protected person or the conclusion of significant legal transactions, to obtain timely court approval (§§ 1836, 1907 BGB). Before authorities, the guardian is required to represent the person under guardianship legally, obtain relevant information, and submit applications on their behalf, e.g., concerning social benefits or health insurance. Any official requests for information must be handled with due regard for data protection. The guardian is bound by a duty of confidentiality (§ 1897 para. 5 BGB).
What legal recourse exists for reviewing and supervising a professional guardian?
Supervision of professional guardians is primarily the responsibility of the competent guardianship court. The court may at any time request reports, documents, or information, in particular under § 1837 BGB to protect the person under guardianship. In the event of a breach of duty, the court can issue instructions, restrict activities, or remove the guardian. Complaints regarding the guardian’s actions may be filed with the guardianship court by the person under guardianship themselves, relatives, or third parties. In addition, according to § 253 FamFG, the person under guardianship has the right to directly apply for the discharge of the guardian. The prosecution service can also initiate investigations in cases of suspicion under §§ 34, 35 BtOG. All court decisions are subject to legal challenge from the perspective of the rule of law.
