Definition and legal classification of the requirement of consent
Der Requirement of consent is a central concept in German guardianship law and plays an essential role in the representation of adults who, due to a mental illness or a physical, intellectual, or psychological disability, are wholly or partially incapable of managing their own affairs. According to Sections 1903, 1825 of the German Civil Code (BGB), a requirement of consent restricts the independent legal capacity of the person under guardianship in such a way that certain declarations of intent or legal actions are only legally effective with the prior approval (consent) of the court-appointed guardian.
Statutory basis and classification in the BGB
Statutory regulation
The legal basis for the requirement of consent is primarily Section 1825 BGB (formerly Section 1903 BGB until June 30, 2023), which, since the reform of guardianship law on January 1, 2023, is anchored in the new section “Guardianship for adults” as part of family law. According to this provision, the guardianship court can, within the framework of guardianship, order a requirement of consent if it appears necessary for the protection of the adult person under guardianship.
Systematic classification
The requirement of consent must be distinguished from the so-called consent requirement that arises, for example, in the case of approval by a legal representative in minor law. In guardianship law, the requirement of consent applies exclusively to adults with legal capacity, whose ability to make independent decisions may be significantly impaired.
Requirements for ordering the requirement of consent
Personal requirements
A requirement of consent can only be ordered if – as set out in Section 1825 (1) BGB – an adult, due to health-related restrictions, is unable, wholly or partially, to manage their own affairs, and there is a specific risk that independent legal actions may result in significant disadvantages for the person concerned.
Material requirements
It is essential that the usual scope of guardianship is no longer sufficient to regulate the need for decisions, making additional protective mechanisms necessary. The requirement of consent is generally ordered only for particular areas of responsibility, e.g., financial affairs or housing matters. Only those transactions are covered that pose an increased risk of harm.
Such an order may be considered if it is feared that the person under guardianship, without the guardian’s control, may lose significant assets or enter into seriously disadvantageous contracts.
Legal consequences of the requirement of consent
Legal significance of transactions
If a requirement of consent is ordered, the person under guardianship remains legally competent within the relevant area of responsibility, but his or her declarations of intent, such as entering into a contract, are generally provisionally ineffective (§ 1825 BGB). They become valid only with the guardian’s consent. If the guardian ultimately refuses to give consent, the declaration is void.
Everyday transactions and exceptions
The requirement of consent does not apply to so-called transactions of daily life (§ 1825 (2) BGB). These include minor everyday matters, such as small purchases, where ignoring them would impose an unreasonable burden on the person under guardianship.
Strictly personal legal transactions are also not covered, which cannot be carried out or approved by the guardian, even as a representative (e.g. marriage, testament, voting rights).
Authority of representation and the guardian’s actions
The guardian acts by law in the relevant area of responsibility as the legal representative of the person under guardianship and is authorized to make declarations of intent and enter into legal transactions on their behalf. The guardian’s appointment and the scope of the requirement of consent are precisely determined by the court in the guardianship order and recorded in the Central Precaution Register as well as the guardianship register.
Types and scope of a requirement of consent
General requirement of consent
This applies to all matters covered by the guardian’s areas of responsibility. The person under guardianship cannot then make any legally effective declarations in the affected areas unless the guardian consents.
Partial requirement of consent
Partial requirements of consent are more common, applying only to specific matters, such as banking transactions, real estate disposals, or contract conclusions, which are then subject to the consent requirement. This ensures the principle of proportionality.
Temporary and permanent requirement of consent
The requirement can be ordered for an unlimited time or temporarily, for example, to prevent an acute danger. Regular judicial review (at least every seven years under § 295 FamFG) is provided for.
Legal protection and judicial control
Order and revocation
The requirement of consent is ordered exclusively by the guardianship court in the context of a formal procedure pursuant to the Act on Law Proceedings in Family Matters and in Matters of Voluntary Jurisdiction (FamFG). The persons concerned, close relatives, and the guardian themselves can apply for the revocation or amendment of the requirement of consent at any time. The court revokes the requirement as soon as the prerequisites no longer exist.
Significance for contracts with third parties
Contracting parties are informed by public notice and by inspection of the central register that a requirement of consent exists for the person concerned. The protective effect also covers legal transactions to prevent legal uncertainty and abusive agreements.
Distinction from other legal institutions
Incapacity to contract
Unlike complete incapacity to contract (§ 104 BGB), where no legally effective declarations can be made at all, a person with limited capacity due to a requirement of consent remains generally capable of making decisions and contracting, but is restricted in the effectiveness of their declarations of intent.
Guardianship and care
In contrast to the (now largely abolished) guardianship for adults, care with a requirement of consent allows for more flexible and individually tailored protection, preserving self-determination as much as possible and restricting it only to the extent necessary for protection.
Summary and practical significance
The requirement of consent is a key instrument in guardianship law and contributes to the protection of adults at risk by permitting their participation in legal transactions in vulnerable areas only subject to the guardian’s consent. The principle of proportionality is maintained by judicial oversight, individualized arrangements, and restrictions limited to specific activities.
Precise knowledge of the requirements, scope, and legal effects of the requirement of consent is of vital importance for all parties involved in the guardianship process, as well as for third parties, to ensure the rights and protection of those affected and to guarantee legally secure contracts.
Frequently asked questions
When and by whom is a requirement of consent ordered?
A requirement of consent is ordered by the guardianship court only if, under Sections 1903, 1905 BGB, it is deemed necessary for the protection of the person concerned and other, less restrictive measures are insufficient. The prerequisite is that, due to mental illness or physical, intellectual, or psychological disability, the person is unable to manage their own affairs and there is a concrete risk that, without such a requirement, they could cause significant harm to their assets or personal interests. The court may order a requirement of consent either upon application by an interested party, such as the guardianship authority, relatives, the appointed guardian, or ex officio, if it considers the protection necessary. The necessity and scope of the requirement of consent are decided in court proceedings, often after a personal hearing of the person concerned and based on a medical report.
Which legal transactions are subject to the requirement of consent?
Not all the person’s legal transactions are automatically covered by the requirement of consent. In principle, the requirement of consent only applies to the areas of responsibility specified in the court order, usually financial matters, sometimes certain transactions relating to health care or housing. The guardianship court specifies in its order exactly which matters are affected. Everyday transactions involving minor daily needs are regularly excluded from the requirement of consent under Section 1903 (4) BGB. For so-called strictly personal legal transactions (e.g. marriage, will), a requirement of consent is generally excluded because these do not depend on representation or involvement by the guardian.
What are the legal consequences of an act carried out without consent?
If a person with a requirement of consent carries out a legal transaction that is affected by this requirement without the necessary consent of their guardian, this legal transaction is, according to Section 1903 (3) sentence 1 BGB, provisionally ineffective. This means that the transaction has no legal effect until the guardian gives consent. If consent is subsequently granted, the transaction becomes effective retroactively. If the guardian refuses consent, the transaction remains permanently ineffective. This is intended to prevent the person concerned from entering into potentially disadvantageous or harmful transactions without adequate protection.
Is the requirement of consent limited in duration and how can it be revoked?
The requirement of consent is generally only ordered as long as its prerequisites exist. The court is required to review regularly, but at least every seven years in accordance with Section 295 (1) FamFG, whether the requirement of consent continues to be necessary. The person concerned, their relatives, the guardian, or the guardianship authority can apply at any time for the revocation or amendment of the requirement of consent if circumstances change and the prerequisites no longer exist. In court proceedings, it is then reviewed whether the need for protection continues. If there is no longer a need, the requirement of consent is revoked, if necessary retroactively.
What effect does the requirement of consent have in contractual (obligations) law?
In contractual (obligations) law, the requirement of consent means that the person remains legally competent but, for the specified areas of responsibility, requires the prior approval of the guardian for declarations of intent. Contractual partners should therefore request the guardian’s certificate and, if necessary, the court order regarding the requirement of consent before concluding or negotiating a contract to avoid legal uncertainties. Contracts concluded without the guardian’s consent are provisionally ineffective; this may pose a significant risk to both parties, especially in the case of major purchases or continuing obligations.
What are the differences between the requirement of consent and incapacity to contract?
The requirement of consent differs significantly from a court ruling of incapacity to contract. In the case of a requirement of consent, the person generally remains capable of contracting but, for certain court-specified matters, is dependent on the guardian’s approval (§ 1903 BGB). In contrast, a person found to be incapacitated under § 104 BGB generally loses the capacity to make any effective legal declarations at all. The requirement of consent is therefore a milder and more differentiated protective measure, preserving the person’s autonomy as far as possible and restricting it only in specifically named areas.
Can both a requirement of consent and supervisory guardianship be ordered at the same time?
According to current law, it is in principle possible to order both supervisory guardianship (§ 1896 (3) BGB) and a requirement of consent. This is particularly the case when, in specific areas, the person is no longer able to exercise their actual will freely without risk to themselves or their assets, and, at the same time, supplementary oversight of an agent’s activities by a guardian seems necessary. However, the court will always consider whether the individual measures are proportionate in their scope and interrelation and necessary in the interests of the person concerned.
