Definition and Legal Classification of a Sole Guardian
Der Sole Guardian is a specific form of guardianship under German law, whereby a natural person assumes comprehensive legal representation and care for a minor (ward). The legal basis for a sole guardian is primarily found in the German Civil Code (BGB), the Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction (FamFG), as well as supplementary regulations.
Duties and Powers of the Sole Guardian
Legal Representation and Personal Care
The sole guardian assumes all duties and rights that would otherwise belong to the parents as part of parental care, provided they are no longer able or permitted to exercise these (§§ 1773 ff. BGB). This particularly includes:
- Die Personal Care (§ 1800 BGB): The sole guardian decides on place of residence, health care, upbringing, education, and other matters of daily life.
- Die Asset Management (§ 1806 ff. BGB): Comprehensive management of the ward’s assets, safeguarding and pursuing claims, as well as entering into and overseeing contracts for the ward.
Representation before Authorities and Courts
Sole guardians represent the ward in all administrative and judicial matters and are entitled to make all legally significant declarations. Generally, representation of the ward in legal transactions and disputes is also included.
Reporting Duties and Supervision
The sole guardian is subject to comprehensive reporting obligations to the family court. They must regularly account for their management of the guardianship (§ 1839 BGB) and are monitored by the court, especially in asset-related matters and important decisions (§§ 1837, 1838 BGB).
Appointment and Selection of the Sole Guardian
Reasons for Appointment
A sole guardian is regularly appointed when parental care is suspended, withdrawn, or if the parents are deceased. The reasons are set out in § 1773 BGB. In rare cases, appointment may also occur upon application by a party.
Selection Criteria
In selecting the sole guardian, the family court must give paramount consideration to the child’s best interests (§ 1779 BGB). Priority is given to close relatives, especially grandparents or adult siblings, provided they are suitable. Third parties, such as family friends or other suitable persons, may also be appointed as sole guardians. Suitability includes personal integrity, reliability, and the ability to manage the ward’s affairs.
Procedure for Appointment
Appointment of a sole guardian generally follows a court procedure. The family court hears the child, provided he or she has reached the age of 14 (§ 279 FamFG), other involved individuals, and the youth welfare office. The court orders the appointment by resolution and issues a certificate of guardianship to the sole guardian.
Legal Status and Rights of the Sole Guardian
Scope and Limits of Powers
The rights and obligations of the sole guardian essentially correspond to those of parents in the context of parental care, but with certain legal restrictions. For some legal transactions, court approval is required, especially in significant asset matters (§ 1822 BGB).
Prohibition of Representation and Conflicts of Interest
The sole guardian may not represent the ward in legal transactions where a conflict of interest exists (§ 1796 BGB). This especially applies in cases where the guardian wishes to conclude a contract with the ward. In such cases, a supplementary guardian (Ergänzungspfleger) is appointed (§ 1909 BGB).
Expense Allowance and Remuneration
The sole guardian is entitled to reimbursement of his or her expenses (§ 1835 BGB). In certain cases, remuneration may also be granted, especially where the guardianship is particularly demanding or long lasting.
Termination and Change of the Sole Guardian
Reasons for Termination
The sole guardianship regularly ends when the ward reaches legal age (§ 1882 BGB), but also in cases of adoption, restoration of parental care, or the ward’s death. A sole guardian may also be dismissed at his or her own request, provided there is an important reason.
Procedure in Case of Change or Dismissal
A change of sole guardian occurs upon application or by the court if the sole guardian appears unsuited or unfit. The family court decides on dismissal and appointment of a new sole guardian by weighing the best interests of the ward (§ 1888 BGB).
Distinction from Other Forms of Guardianship
Difference from Official and Association Guardians
While a natural person acts as a sole guardian, official guardianship is provided by the youth welfare office (§ 1791b BGB). An association guardian is a legal entity, usually a recognized guardianship association (§ 1791a BGB). Appointment of a sole guardian takes precedence, provided a suitable person is available.
Relationship to Withdrawal of Parental Care and Curatorship
The sole guardian also differs from a curator (Pflegschaft). The latter relates only to specific matters or aspects of parental care (partial guardianship), whereas sole guardianship replaces parental care in its entirety.
Special Features and Current Developments
Statistics and Practice
The majority of guardianships in Germany are carried out by official guardians; however, sole guardians are preferred, provided suitable persons are available, as they often form a stronger personal bond with the ward.
Reforms and Changes in Guardianship Law
With the 2023 reform of guardianship law, the focus shifted even more towards the best interests of the child and the participation of the ward. For example, the involvement of the child in the appointment of the sole guardian was emphasized.
References:
- German Civil Code (BGB)
- Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction (FamFG)
- Act to Reform Guardianship and Care Law
This article provides a structured and well-founded overview of the legal status, duties, appointment and special characteristics of the sole guardian in the German legal system.
Frequently Asked Questions
Who can be appointed as a sole guardian?
In principle, any adult with legal capacity who possesses the necessary personal and professional suitability to represent a ward and ensure their welfare may become a sole guardian (§ 1779 (1) BGB). Preferably, close relatives, especially grandparents, uncles or aunts of the child, or specially trusted persons of the family, are appointed by the family court as sole guardian if this benefits the child’s welfare. However, a specific family member has no entitlement to the guardianship. Appointment always requires a comprehensive assessment by the family court, which particularly considers reliability, social competence, living situation, health and personal stability, and willingness to assume the role. A criminal record, including in the area of custody or financial crimes, may be grounds for exclusion. Furthermore, non-relatives generally require the express consent of the child if the child is at least 14 years old (§ 1776 BGB).
What rights and duties does a sole guardian have?
The sole guardian assumes full legal representation of the ward in all matters of personal care and, unless the family court orders restrictions, of asset management (§ 1800 BGB). The guardian must ensure the child’s well-being, education, health, school and vocational training, residence, and management of assets. Duties include detailed reporting to the family court, in particular through regular activity reports and accountings (§ 1840 BGB). For especially far-reaching decisions, such as consent to adoption, major medical interventions, or termination of lease agreements, the sole guardian requires court approval (§ 1821, § 1822 BGB). The guardian must also maintain regular personal contact with the child and take the child’s wishes into account as appropriate.
How is a sole guardian supervised by the court?
The family court exercises continuous legal and professional supervision of the sole guardian. In particular, the guardian is required to notify the court immediately upon taking up the position and to submit a detailed activity report and a complete inventory of assets annually (§§ 1802, 1840 BGB). The court may request additional reports and may provide support through the youth welfare office or issue professional instructions. If violations of obligations are suspected, the court can initiate reviews, hearings, and in serious cases, removal of the sole guardian (§ 1837 BGB).
How is remuneration or expense reimbursement for a sole guardian regulated?
A sole guardian has a statutory right to reimbursement of necessary expenses (§ 1835 BGB). Remuneration is generally not granted to voluntary guardians. Only if the assumption of the role imposes a particular burden, especially if the duties demand considerable time or require special skills, may the court grant a lump-sum expense allowance or even remuneration upon application (§ 1836 (2) sentence 2 BGB). For professional sole guardians, fixed fee tables apply.
When and how can a sole guardian be removed?
A sole guardian can be removed at the request of the ward, the ward’s relatives, the youth welfare office or on the court’s own initiative if there is an important reason (§ 1886 BGB). Reasons include serious breaches of duty, persistent neglect of the child’s welfare, conflicts of interest, or a lasting breakdown of the relationship of trust between ward and guardian. Removal is effected by court order and is accompanied by a new appointment to ensure continuous guardianship.
Can a sole guardian resign from office?
In principle, resignation from the sole guardianship office is permitted only for good cause (§ 1887 BGB). Typical examples are illness, age-related limitations, relocation, or continued excessive burden resulting from the role. The application for dismissal must be made in writing to the family court and justified. Until a new guardian is appointed, the sole guardian remains obligated to perform his or her duties to avoid a break in care.
What role does the ward play in choosing the sole guardian?
As soon as the child has reached the age of 14, the child must be heard in accordance with § 1776 (2) BGB before a sole guardian is appointed. The express wish of the child must be considered whenever possible, unless it is contrary to the child’s welfare. The court may only appoint the guardian against the child’s will if there are significant reasons or the independently declared consent is not in the child’s best interests.
What are the differences between a sole guardian and an association or official guardian?
In comparison to association or official guardians, where legal entities such as the youth welfare office or recognized associations take on the role, a sole guardian is distinguished by a personal, continuous, and individualized relationship with the ward. While association and official guardians frequently manage several guardianships at once, the sole guardian provides a direct bond and care tailored to the ward’s specific life situation. The legal foundations and supervisory mechanisms, however, are largely uniform, especially regarding reporting obligations, requirements for approval, and court oversight.
