Definition and legal framework of authority representation
Die Authority representation is a term from German administrative law and encompasses all activities in which a natural or legal person, as a representative or authorized agent, safeguards the interests of third parties vis-à-vis authorities and public bodies. Authority representation is relevant in numerous areas of law and may take place both out of court and in the context of administrative procedures. It essentially differs from traditional legal advice by focusing particularly on direct communication, accompaniment, and representation in administrative proceedings.
Legal basis of authority representation
The legal foundations of authority representation arise from various legal provisions. Core regulations can be found in the Administrative Procedure Act (VwVfG), in special statutory provisions, in the Civil Code (BGB) – especially the regulations concerning legal guardianship (§§ 1896 ff. BGB) – as well as in the Social Code (SGB), particularly where support and assistance in social and guardianship law are concerned.
Administrative Procedure Act (VwVfG)
Section 14 (1) VwVfG of the Administrative Procedure Act provides the possibility for parties to an administrative procedure to be represented by an authorized agent. Authorized agents may carry out tasks related to authority representation, provided they present the appropriate authorization.
Civil Code (BGB)
For persons in need of guardianship, the law of guardianship as set out in §§ 1896 ff. BGB regulates the appointment of a guardian, who can also act as an authority representative. This person undertakes tasks such as submitting applications, attending appointments, and communicating with authorities on behalf of the person under care.
Social Code (SGB)
In the area of social law, authority representation is also legally anchored. According to various provisions of the SGB—for example, in § 14 SGB I—entitled persons have the right to obtain help and support when dealing with authorities.
Tasks and activities of authority representation
Authority representation includes a variety of tasks, such as:
- Application submission: Assistance with completing and submitting forms and applications to authorities.
- Correspondence: Handling all written communications with authorities, for example in objection and administrative proceedings.
- Attending appointments: Accompanying and representing clients at oral hearings, meetings, or assessments.
- Obtaining information: Obtaining necessary information, documents, or records from authorities.
- Monitoring deadlines: Ensuring that legal or administrative deadlines are met.
- Assistance with asserting claims: Help with asserting rights in administrative procedures, including complaints and legal remedies.
Distinctions from other forms of guardianship and representation
Authority representation is to be distinguished from other forms of legal guardianship and powers of attorney:
- Legal guardianship under the BGB: This often goes beyond authority representation and may also include health, property-related, or organizational matters.
- Powers of attorney: Companies, organizations, or even private individuals can authorize a person to represent them before authorities without the need for a court appointment.
- Procedural guardian: In family court proceedings, there are special representatives known as procedural guardians who hold specific protective interests, which differs from classical authority representation.
Requirements, rights, and duties within the scope of authority representation
Authorization and proof
Authority representation regularly requires proper authorization. This includes, for example, powers of attorney, guardian IDs according to § 289 BGB, or, in the case of appointment, guardianship orders from the competent court. Authorities are obliged to review such documentation and to accept the authority representative as the representative of the person under care.
Duties of the authority representative
The authority representative is obliged to safeguard the interests of the person under care to the best of their ability and to avoid harm. In particular, they are bound to confidentiality, careful handling of matters, and compliance with legal requirements. In the case of statutory guardianship, there is also an obligation to account and report to the guardianship court.
Limits of representation
Authority representation is limited, among other things, by the scope of the granted power of attorney, legal provisions, and in the event of conflicting interests. Authorities may also be entitled to clarify certain matters directly with the person under care, especially when highly personal rights are involved.
Significance of authority representation in different areas of law
Social law and claims to social benefits
Authority representation is particularly significant in the field of social law. People in need of support, for example due to illness, age, or disability, regularly rely on assistance when dealing with authorities. Here, authority representation significantly contributes to ensuring benefit entitlements and effective participation.
Immigration and migration law
In immigration law, authority representation may be required for persons with language, cognitive, or other barriers to assert their rights vis-à-vis immigration or social authorities.
Guardianship law
In guardianship law, authority representation is often one of the main areas of responsibility for the appointed guardian. It primarily serves to protect persons requiring guardianship from disadvantages and to ensure the effective management of their matters when dealing with authorities.
Remuneration and reimbursement of costs
The remuneration for authority representation depends on the particular area of law and type of representation. In the case of legal guardianship under the BGB, official remuneration is provided in accordance with § 1836 BGB and the Guardian Remuneration Ordinance (VBVG). In the context of private powers of attorney, remuneration is freely agreed upon. In the area of social law, certain costs may be reimbursed if there is an entitlement.
Liability and responsibility
The authority representative is liable for errors in the course of their activities in accordance with the general principles of civil law (§§ 280 ff. BGB) and is obligated to properly perform their function. In cases of gross negligence, this can lead to damages, dismissal, or revocation of the power of attorney.
Data protection and related legal requirements
In authority representation, the provisions of the General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG) must be observed. Especially when transferring and processing personal data, there is an obligation to inform the affected person and appropriate measures must be taken to protect the data.
Summary
Authority representation constitutes a fundamental support function in German administrative law and is indispensable for many individuals to exercise rights and obligations vis-à-vis authorities. It is comprehensively regulated by law, covers various areas of law, and is subject to specific requirements regarding authorization, duties, costs, and data protection. Authority representation especially enables disadvantaged or vulnerable individuals to participate equally in administrative proceedings.
Frequently asked questions
What are the legal obligations of an authority representative?
The authority representative is obliged to perform the entrusted duties within the framework of the applicable law. This includes, in particular, representing the person under care before authorities, submitting and monitoring applications, fulfilling legal obligations towards social benefit providers, as well as complying with deadlines and cooperation requirements. The representative must always act in the best interests of the person under care and respect their right to self-determination (§ 1901 BGB). In addition, the authority representative is subject to a duty of accountability to the guardianship court, must submit regular reports, and provide information about administrative proceedings conducted. Breaches of these obligations can have civil and criminal consequences.
To what extent is an authority representative permitted to conclude contracts or make declarations of intent?
Within the scope of authority representation, the representative is generally authorized to make declarations of intent on behalf of the person under care, if necessary for the fulfillment of their duties. This includes, for example, applications for social benefits, filing legal remedies, or drafting applications to authorities. However, concluding contracts that go beyond ordinary administrative matters is not permitted without express judicial approval (§ 1822 BGB). For legal transactions of considerable significance, prior consent from the guardianship court must always be obtained.
Which legal provisions govern the tasks and powers in the field of authority representation?
Authority representation is primarily regulated in the Civil Code (BGB), in particular §§ 1896 ff. The areas of responsibility and their scope are determined by the appointment by the guardianship court. Both the court order and the statutory provisions are decisive in defining the duties and boundaries of the representative’s activities. In addition, relevant procedural rules of the Code of Civil Procedure (ZPO) and sector-specific laws such as the Social Code (SGB) must be observed. The guardianship court is responsible for overseeing and monitoring the representative.
Is authority representation subject to judicial oversight and if so, to what extent?
Authority representation is always a court-ordered measure and is therefore subject to supervision by the guardianship court (§ 1837 BGB). The authority representative must provide regular accounts, submit activity reports, and is under constant supervision regarding their official conduct. Furthermore, the court may revoke, restrict, or impose further conditions upon the appointment in the event of irregularities, complaints, or at the request of the person under care or their relatives. For certain legal transactions in the area of authority representation, the court’s consent is also required.
Can persons under care contest decisions by the authority representative?
Persons under care have the right to have the measures and actions of their authority representative reviewed by the competent guardianship court. According to § 1837 (2) BGB, they have the right to appeal decisions that impair their rights. The court examines both the legality and the appropriateness of the representative’s decisions if there is a violation of legal or personal interests. Under certain conditions, relatives also have the right to lodge complaints.
How is the distinction made from other areas of guardianship in the legal sense?
Authority representation exclusively covers tasks relating to legal and factual representation before authorities. It is clearly separate from other guardianship duties such as property management, health care, or deciding place of residence. Legally, parallel appointments covering several areas are possible, but each area must be precisely defined by the court. The authority representative is responsible solely for administrative matters and may only act within the assigned scope of duties.
What liability risks do authority representatives face from a legal perspective?
Authority representatives are liable for culpable breaches of duty under the general provisions of civil law (§ 1833 BGB). This particularly concerns breaches such as missing deadlines, failure to submit required applications, or erroneous statements that cause disadvantages to the person under care. Liability may also arise if the representative fails to fulfill reporting obligations to the court. There is a risk of personal liability for negligent and grossly negligent breaches of duty towards the person under care or third parties. Taking out liability insurance is therefore strongly recommended.
