Why are caregivers paid so low

Supervisor Liability

The legal guardian is liable for damage caused intentionally and negligently to the person being cared for if this turns out to be a breach of duty (Section 1833 BGB in conjunction with Section 1908i Paragraph 1 BGB). The supervisor has no official duties towards other people.

Breaches of duty

The supervisor acts contrary to duty if his behavior constitutes a violation of the obligation to faithfully and conscientiously conduct the supervision. A breach of duty exists, for example, if the supervisor violates specifically formulated legal provisions, e.g. does not comply with his information, reporting and accounting obligations (§ 1839 BGB, § 1840 BGB, see OLG Hamm Rpfleger 1966, 17; BayObLG BtPrax 1994, 35 = FamRZ 1994, 323), when investing funds for the supervised person that are not required for current livelihood, does not invest according to § 1807 and also does not apply for a guardianship court approval for a different type of financial investment according to § 1811, donations in violation of §§ 1804, 1908 undertakes, conditions of the testator or donor (§ 1803) BGB or the provisions on the deposit of securities (§ 1814, § 1818) and blocking of accounts (§ 1809 BGB, § 1815 BGB, § 1816) BGB disregarded or funds of the supervised own mixed (§ 1805 BGB, see LG Krefeld Rpfleger 2001, 302).

Compared to the guardian or carer of a minor, the supervisor is less free to organize his or her supervision. In all actions, he must orient himself towards the wishes of the person under care (Section 1901 (2) BGB), if such are expressed, whereby the legal capacity of the person under care is irrelevant. However, this requirement only applies if these wishes do not run counter to the welfare of the person being cared for and can be expected of the carer.

The supervisor acts contrary to duty in this sense, for example, if he forces the person under care to live an economical lifestyle against his or her will and actual possibilities (BayObLG FamRZ 1991, 481). The supervisor may also not curtail the way of life against the wishes of the supervised person in favor of the refinancing of the supervisory activity (OLG Düsseldorf, BtPrax 1999, 74 = FGPrax 1999, 54 = FamRZ 1999, 1169, similar to LG Kiel 3 T 49/00 of 09.02.2000 and OLG Schleswig 2 W 43/00 of March 22, 2000, FamRZ 3/2001, II).

Failure to maintain regular contact with the supervised person (Section 1897 (1) BGB) and to discuss important matters for the supervised person (Section 1901 (3) BGB) is also contrary to duty. The forced transfer of the person being cared for to an open nursing home for the elderly is also said to be contrary to duty (LG Offenburg FamRZ 1997, 900), as is the refusal to contact close relatives for no reasonable reason (OLG Hamm Rpfleger 1985, 294, BayOBLG FamRZ 1988, 320 and FamRZ 1991, 1481).

Further examples: refusal of funds for health resort measures, reckless denial of a justified creditor's claim, rejection of an apparently justified criminal defense appointment despite assets (OLG Karlsruhe DAVorm 1967, 126), refusal of financial resources for the (legal) submission of an application for cancellation of care, registration of accommodation only with the task of health care (OLG Hamm FamRZ 2001, 861).

The claims for damages can be raised

  • by the carer himself, provided he is not legally incapable of doing so (a reservation of consent should of course not extend to claims against the carer);
  • by a person authorized by the supervised person (e.g. a lawyer);
  • by a supplementary supervisor (according to § 1899 Abs. 4 BGB), whose only scope of duties includes the examination of possible breaches of duty and assertion of claims for damages;
  • by a later appointed supervisor who, with the task of asset management, also has to assert (not yet statute-barred) claims for damages against a previous supervisor. This applies in particular in the case in which the previous supervisor was dismissed due to a breach of duty;
  • of the heirs of the deceased cared for as their legal successors.

The supervisor, especially the legally ignorant volunteer supervisor, is to be given relief from the special circumstances of his or her circle of life (BGH FamRZ 1964, 199). In principle, he can also rely on legal advice from the Guardianship Court in accordance with Section 1837 (1) of the German Civil Code (BGB).

In the case of a career supervisor, however, you can generally expect that he knows the legal basis of his work and, if necessary, is able to access the information necessary for his work, if necessary by using the various advice options, but also through further training and his own Literature research (e.g. OLG Zweibrücken FGPrax 2004, 75 = FamRZ 2004, 422 = Rpfleger 2004, 422). In addition, professional supervisors are not granted any relief from liability in the event of breaches of duty, which are sometimes granted to legally inexperienced volunteer supervisors, e.g. in dealing with social benefit providers (e.g. OLG Schleswig, FamRZ 1997, 1427 = NJWE-FER 1997, 105).

Jurisprudence:

Munich Higher Regional Court, decision of August 4th, 2005, 33 Wx 81/05, FamRZ 2006, 64 (Ls.):

Suspicions expressed without concrete evidence that a guardian is abusing his position to shift the assets of the guarded person into his own property and thereby reduce inheritance claims cannot justify a right to inspect the guardianship files.

BGH, decision of 04.05.2011, XII ZR 86/10, BeckRS 2011, 14273 = IBRRS 80546 = NJW-RR 2011, 1009 = LSK 2011, 320307 = FamRZ 2011, 1144 = BtPrax 2011, 171:

According to general principles, the plaintiff is also required to present and provide evidence for the alleged damage in the event of a claim for damages according to §§ 1908 i para. 1 sentence 1, 1833 para. 1 sentence 1 BGB for the breach of duty, the damage and the causality of the breach of duty for the damage claimed (Palandt / Diederichsen BGB 70th edition, § 1833 marginal number 6).

AG Zossen, judgment of April 26, 2018, 3 C 159/17, MDR 2018, 1254

A custodian who is not legally competent is not able to take legal action against his or her custodian. Section 275 FamFG does not apply accordingly in civil proceedings, even if this is directly related to the care.

Damage can also result from failure to take necessary actions

Damage caused by omission can lead to liability if the supervisor should have acted to protect the person being cared for. Examples would be the failure of application deadlines, e.g. in the case of voluntary health insurance or the rejection of an overindebted inheritance of the person being cared for.

Jurisprudence:

Munich Higher Regional Court, decision of August 4th, 2005, 33 Wx 29/05; BtPrax 2005, 199 (LS) = FamRZ 2006,62 (LS) = Rpfleger 2006, 14

A supervisor in the asset management task group is obliged to assert claims for enrichment (§ 812 BGB) against third parties even if they have already received assets from the legally incapable supervised person before the supervisor was appointed.

LG Stade, 06/26/2007 - 3 O 152/06, FamRZ 2008, 2232 (Ls.):

If an association supervisor has made withdrawals on his own initiative for his own purposes and at the expense of a supervised person, there may be a breach of supervisory duties on the part of the supervision association. Liability is excluded if damage (due to return flow) cannot be determined with certainty and the withdrawals cannot be attributed to inadequate monitoring, as the regular monitoring did not reveal any abnormalities.

Basically no obligations towards third parties

In principle, the supervisor only has obligations towards the person supervised (Section 1901 BGB). In principle, he does not have to take into account the interests of third parties (landlords, authorities, etc.) in his work (BGH BtPrax 1995, 103 = FamRZ 1995, 282). However, the Federal Court of Justice ruled in an earlier judgment that in contract negotiations for particularly dangerous supervised contract partners, an extreme risk must not be burdened (BGH, NJW 1987, 2664 = FamRZ 1987, 904).

In the social welfare law, the supervisor is also obliged to cooperate under social law (Section 60 of the Social Code I). He must, for example, inform the social security provider about acquisitions of assets (gifts, inheritances) without being asked. Under certain circumstances, he can be obliged to pay compensation himself if important information is not disclosed (Section 103 of the Social Security Code - XII).

In tax law, the supervisor, with the task of asset management, has the tax declaration obligations of the supervised person (§ 34 Tax Code). If he violates this obligation intentionally or through gross negligence, he is also liable to the tax office himself (§ 69 Tax Code).

Relatives often request access to the care files in order to identify any breaches of duty on the part of the carer. However, this can only be granted if a legitimate interest is demonstrated. In this regard, the Munich Higher Regional Court found that, without concrete evidence, suspicions - for example a supervisor misusing his position to shift the assets of the supervised person into his own property and thereby narrowing inheritance claims - cannot justify a right to inspect the care files.

Supervision duty of a supervisor

The carer is only obliged to supervise the person under care if it has been expressly ordered by the court or if the care extends to the entire care of the person. With this justification, the Bielefeld Regional Court, with judgment of May 26, 1998, 20 S 48/98 - dismissed a claim for damages against a father whose mentally handicapped son who was under his care had caused a traffic accident.

Court approval is not a discharge of liability

Approval by the guardianship court does not constitute an exemption from the obligation to pay compensation. The supervisor is further responsible for the legality of his actions. See BGH, decision of September 18, 2003.

The limitation period vis-à-vis the supervised person or his heir is 30 years; there is also a limitation period during ongoing supervision (§ 197, § 207 BGB).

Civil and criminal liability of the guardian

Basics: § 1833 BGB (in conjunction with § 1908i Abs. 1 BGB), § 14 StGB

The supervisor can be held liable for any damage he causes to the supervised person. It is therefore advisable to take out liability insurance for the supervisor. The supervisory court can oblige the supervisor to take out liability insurance (Section 1837 (2) BGB).

Voluntary supervisors are already insured by the state in most of the federal states. Liability insurance should also be taken out for the person being cared for, provided that they are not incapable of tort (§ 827 BGB). Care clubs often offer free insurance for club members. In the case of professional supervisors, a prerequisite for starting a career is that liability insurance is in place.

Types of breach of duty

In the daily work of the supervisor, there can be numerous different processes that trigger liability claims. Due to the particularities of the individual case, it is not possible to give a complete list. However, at least example cases should be listed below that have already been assessed accordingly in the case law or literature.

Litigation

Liability consequences in the context of conducting processes for the person under care can be triggered, among other things, by:

  • leading a hopeless process;
  • the incorrect conduct of a process;
  • failure to submit a legal aid application;
  • failure to take legal action before the limitation period has expired;
  • Failure to provide notification of the person under care's financial obligations as a result of lost processes.
Social benefits and alimony

As part of the financial security of the person in care, the following were confirmed as a breach of duty:

The Federal Social Court saw it as the duty of the supervisor to personally take care of voluntary continued insurance in the health insurance company, provided that the health care task area exists (judgment of April 15, 2002, B 12 KR 14/01, FamRZ 2002, 1471). In the case of a late application for a pension, it was recognized that the supervisor initially trusted the success of rehabilitation measures at the request of the person in care (LG Berlin BtPrax 2001, 83).

In the case law it was established that the application for social assistance is part of personal care, not part of property care (LG Köln FamRZ 1998, 919, OVG NRW FamRZ 2001, 312). For this reason alone, a supervisor who is solely responsible for asset management cannot be held liable for late submitting an application for social assistance. Similar problems of demarcation exist with maintenance claims. The OLG Zweibrücken does not see them as part of the property management task group (OLG Zweibrücken FamRZ 2000, 1324 = NJW-RR 2001, 151).

Jurisprudence:

OLG Hamm, judgment of 08.08.2009, 13 U 75/07:

Failure to apply for voluntary continued insurance of a mentally and physically disabled person is a breach of duty on the part of the carer. After the statutory health and long-term care insurance coverage has expired, the carer must ensure that the person cared for is voluntarily continued to be insured. The existence of this insurance is particularly important for a severely mentally and physically handicapped person, since medical and nursing services must be used constantly. Failure to submit an application to the health insurance company for voluntary follow-up insurance represents an at least negligent breach of duty on the part of the supervisor, which entitles the social welfare provider to the effective assignment of a claim for damages.

General wealth management

In the area of ​​asset management, the following breach of duty was affirmed:

  • the premature sale of property in times of rising prices;
  • the uncritical assumption of the valuation of real estate;
  • the investment of ward money (which is not required for current maintenance) with an interest rate that is too low (in a savings book with statutory notice instead of investing in treasury bonds or similar securities);
  • investing in foreign (uncertain) securities.

In order to answer the question of whether there has been a breach of duty in the area of ​​asset management, the overall behavior of the legal guardian must generally be checked; individual expenditure items must not be picked out arbitrarily. In the event of a lack of legal knowledge, the supervisor may be obliged to obtain legal information from the Guardianship Court (Section 1837 (2) BGB).

Not every financial loss that would not have occurred had the office been carried out sparingly is damage in the legal sense. Because the supervisor is supposed to help the person in care's autonomous life plan to come true, the financial requirements required for this are also the benchmark. If the person being cared for in the old people's home insists that his house should be vacant and if he has the financial means to be able to afford this, the carer does not need to rent or sell the house.

Case law: OLG Celle, judgment of May 16, 2008, 20 U 44/07

A prerequisite for a claim for damages is that it is conclusively demonstrated that the behavior of the supervisor complained about, namely cash withdrawals from a current account and several savings accounts, actually caused damage to the person being looked after. As long as the cash withdrawals objected to by the plaintiff have either been booked in a traceable manner from an account of the person under care to another account of the person under care or the whereabouts of the cash is proven by receipts, a claim for compensation is not evident.

Living room

In the area of ​​providing care for adults, it must be noted that the termination of living space by a guardian is dependent on the approval of the Guardianship Court in accordance with Section 1907, Paragraph 1 of the German Civil Code (BGB).

Hence there is liability for here

  • for late obtaining approval from the guardianship court;
  • the culpable delay in liquidating the apartment after the approval has been granted;
  • the unlawful abandonment of the person's home without prior approval from the guardianship court.

The continuation of the tenancy of the person in care may, however, also be advisable against a guardianship court's approval to terminate the living space if it serves the well-being of the person in care (Section 1901, Paragraph 1 BGB) because, for example, their health has improved and the abandonment of the apartment is therefore no longer necessary. In this case, despite court approval, the termination of the living space can again trigger liability-related consequences, since the supervisor always has to orient all legal acts towards the well-being of the person being cared for. The guardianship court's approval requirement only applies to apartments inhabited by the person being looked after.

Furthermore, a supervisor was held liable under liability law because he did not arrange for an apartment to be terminated in good time (LG Berlin FamRZ 2000, 1526). Access to the apartment of the person being looked after can also be the subject of the dispute.According to the LG and OLG Frankfurt / Main, the supervisor cannot enter the apartment of the person being looked after against their will. He cannot be authorized to do so by the guardianship court (LG Frankfurt BtPrax 1994,216 (= FamRZ 1994,1617; OLG Frankfurt, BtPrax 1996,71). This view is controversial, e.g. the LG Berlin BtPrax 1996,111 = FamRZ 1996,821; LG Freiburg FamRZ 2000,1316).

The dissolution of the apartment itself can also become an offense giving rise to damages if, for example, the supervisor erroneously has valuable antiques disposed of as bulky waste or, in ignorance of the donation prohibition (§§ 1804, 1908 i Para. 2 BGB), gives away items of the supervised furniture. In case of doubt, appraisals should be obtained, neutral witnesses should be consulted when the apartment is liquidated and, instead of donations, loans should be made (against proof) if necessary.

Personal care

Liability in the area of ​​personal care is always more difficult than in the other areas. As a rule, it is about questions of treatment and / or deprivation of liberty. For example, the Federal Court of Justice ruled on October 11, 2000 that a forced presentation for the outpatient administration of medication was inadmissible. The LG Oldenburg described the transfer of a cared person to an open nursing home against his will as inadmissible (LG Oldenburg FamRZ 1997, 899). Deprivation of liberty is also problematic only with the task of health care (OLG Hamm FamRZ 2001, 861).

Even if the guardianship court's approval required for certain legal acts (e.g. approval to terminate a tenancy agreement for living space, Section 1907 (1) BGB) has been granted by the guardianship court, this does not exclude liability on the part of the legal guardian.

Jurisprudence:

OLG Munich, decision of 25.01.2007 - 33 Wx 6/07, BtPrax 2007.79 = DNotZ 2007.625 = FamRZ 2007, 1128 = FGPrax 2007, 84 = MedR 2007, 425 = MittBayNot 2007, 324 = NJW 2007, 3506 = OLGR 2007,163

Failure to obtain court approval before discontinuing treatment (here: stopping tube feeding) does not constitute a breach of duty on the part of the supervisor if the doctor does not consider further treatment to be medically indicated and therefore does not “offer” it (cf. BGHZ 154, 205).

Statute of limitations

A new statute of limitations has been in effect for the supervisor's liability since January 1st, 2010. While there was previously a 30-year limitation period (Section 197 No. 2 BGB in the version up to December 31, 2009), the standard limitation period has been applicable since 2010 (Section 195 BGB). This basically means 3 years (Section 199 (1) BGB). However, the limitation period for property damage and financial loss is 10 years if the claim is unknown to the injured party (Section 199 (3) BGB). In the case of personal injury (violation of freedom, health and life), it remains at 30 years according to Section 199 (2) BGB. In addition, the start of the period is inhibited during ongoing supervision (Section 207 BGB).

Liability insurance

Liability for damage according to § 1833 BGB can represent a high financial burden. According to Section 1837 (2) of the German Civil Code (BGB), the supervisory court can oblige the supervisor to take out liability insurance. For voluntary supervisors, however, all federal states have taken out collective liability insurance in which all supervisors who are not professionally active are insured. Personal injury and property damage up to EUR 1 million are insured here. In the case of financial losses, however, the insurance coverage is significantly lower. Depending on the federal state, the insurance coverage for financial losses is between 26,000 and 100,000 euros.

Club supervisors must be insured against liability through their supervisory association in accordance with Section 1908f of the German Civil Code (BGB). Officials are subject to official liability law (§ 839 BGB). Self-employed professional carers should take out liability insurance on their own initiative. The professional associations (BdB and VfB) offer discounted conditions.

Criminal offenses

The guardian is guilty of an offense under criminal and civil law if he is responsible for asset management and tolerates social fraud on the part of the person under care. If he does not have this task or if it is a criminal offense such as possession of illegal drugs, the caregiver is not obliged to prevent this circumstance. Because only serious crimes, starting with the preparation of a war of aggression, robbery and counterfeiting to the formation of a terrorist organization have to be reported. People who are subject to confidentiality are also obliged to do so. It is unclear whether the supervisor can be prosecuted if he consents to therapeutic treatment of the person being cared for, which is punishable as bodily harm because it was wrongly carried out against the will of the person being cared for. Zimmermann takes the position that the risk lies solely with the attending physician.

Court decisions on the liability of the supervisor

Process aspects

OLG Frankfurt a.M., decision of 05.01.2010, 6 UFH 4/09:

Claims for damages by the carer against the carer, which are rooted in the caregiving relationship, are not family matters according to Section 266 (1) No. 4 FamFG even if the carer is a parent of the carer.

BGH, decision of 04.05.2011, XII ZR 86/10,BeckRS 2011, 14273 = IBRRS 80546 = NJW-RR 2011, 1009 = LSK 2011, 320307 FamRZ 2011, 1144 = BtPrax 2011, 171:

According to general principles, the plaintiff is also required to present and provide evidence for the alleged damage in the event of a claim for damages according to §§ 1908 i para. 1 sentence 1, 1833 para. 1 sentence 1 BGB for the breach of duty, the damage and the causality of the breach of duty

LG Berlin, decision of March 8, 2016, 2 O 357/15; FamRZ 2017, p. 1257:

For disputes between the guardian and the guardian about asset management (Section 1843 (2) BGB in conjunction with Section 1908i (1) sentence 1 BGB), according to Sections 111, 266 (1) No. 4 FamFG, legal recourse to the family court as a trial court is opened (against OLG Frankfurt, decision of January 5, 2010 - 6 UFH 4/09, Rn. 8 ff., Quoted from juris).

AG Zossen Urt of April 26, 2018, 3 C 159/17

A custodian who is not legally competent is not able to take legal action against his or her custodian. Section 275 FamFG does not apply in civil proceedings, even if this is directly related to the care.

OLG Hamm, decision of November 19, 2018 - 32 SA 52/18, NJW-RR 2019, 268:

If the heirs of a person under care claim damages for the person under care due to their asset management, the special place of jurisdiction for asset management (Section 31 ZPO) can be established as a common place of jurisdiction. The focus here is on the location where the asset management actually took place.

LG Flensburg, judgment of 19.07.2019, 2 O 365/16

The civil court is not responsible for claims for damages between the person being cared for and the carer according to § 1843 BGB in conjunction with § 1908i Abs. 1 S. 1 BGB.

BGH, decision of December 17, 2020 - III ZB 59/20

  1. The application (of the person being supervised) for approval of legal aid is inadmissible if a supervisor has been appointed for the applicant with the task of "Authority matters and judicial proceedings" including a reservation of consent according to § 1903 BGB and the consent of his supervisor to conduct the litigation is not available.
  2. This also applies if the person concerned wants to lead a legal dispute against his or her supervisor himself. For this (individual) matter, the person concerned who is capable of proceeding according to Section 275 FamFG in conjunction with Section 271 No. 1 FamFG must first apply to the responsible supervisory court, according to Section 1908i Paragraph 1 Clause 1 BGB in conjunction with Section 1796 BGB analogous to his supervisor for supervision due to a significant To partially withdraw conflicting interests and to appoint a supplementary supervisor in accordance with Section 1899 (4) of the German Civil Code (BGB), who can then (if necessary) give his consent in accordance with Section 1903 of the German Civil Code (BGB) for the person to take legal action against his (main) supervisor.

Liability to the cared for

OLG Cologne, decision of February 29, 1988, 7 W 50/87, FamRZ 1988, 1097

A municipality is not liable for breaches of duty by its employee whom the Guardianship Court has appointed as individual guardian or carer on its proposal.

AG Bremen, judgment of 14.02.1993, 7 C 453/91, Rpfleger 1993,338 = WM 1993,1959

  1. In the case of a six-year-old ward who is not dependent on ward money for ongoing maintenance and spending and who had considerable cash assets in the savings book of around DM 27,000, the longer investment is placed on a savings book with statutory Notice period at the base rate (here: 2%) represents a breach of duty by the supplementary caregiver.
  2. The carer is not only liable for intent, but also for negligence.

LG Offenburg, judgment v. 06.06.1994, 2 O 475/93, FamRZ 1996, 1356

There is no claim for compensation for lost social assistance against the legal representative, if the necessary living necessities were granted by private parties. Social assistance does not serve to build up assets, but to cover the life needs of the needy. It can be left open whether the defendant has committed a breach of duty and would therefore be obliged to pay compensation to the claimant. The claimant did not suffer any damages that could be compensated. In accordance with Section 249 of the German Civil Code (BGB), the state that would exist without the damaging event must be established. However, if the defendant had made an application for the granting of ongoing support for the cl., Then the cl. Would not today be in possession of 19,752.20 DM, as he is now suing. Because the social welfare would have been used for his living needs (rent, food, clothing, linen, toiletries, etc.). Social assistance does not serve to build wealth. Because the sense and purpose of social assistance is to provide the needy with the necessities of life to provide help in a current emergency. For this reason, in std. Rspr. Of the BVerwG Funding of social assistance for the past refused in principle (see, inter alia, BVerwGE 57, 237 et seq .; BVerwGE 60, 237 et seq.). Anyone who receives their necessary living needs from a private side, as here through Ms. B., is not indigent i. S. of social welfare law. Ultimately, it was not the plaintiff but Ms. B. who suffered financial disadvantages.

OLG Hamm, judgment v. 14.10.1994 - 29 U 231/93, FamRZ 1995, 696

The curator of the estate violates his duty to safeguard the property interests of the heirs if he agrees to the deletion of a notice of conveyance entered for the testator without ensuring that a partial purchase price already paid will be repaid to the estate.

OLG Schleswig, judgment of 06.12.1996, 1 ​​U 91/96; bt-info 2003,83 (LS) = NJWE-FER 1997,105 = FamRZ 1997,1427

If the supervisor does not appeal against a decision of the social welfare office in which an application for the granting of social assistance was rejected, he is not liable to a home provider for damages (because of unpaid home costs) if he has failed to appeal because the decision is plausible was. This also applies if the social welfare office's legal opinion was incorrect.

Although the supervisor is basically liable for every degree of fault, according to general A., however, the supervisor, in deviation from the general, exclusively objective standard of care of § 276 I BGB, benefits from relief that results from the special circumstances of his or her circle of life. It is undisputed that the defendant is not a person who is knowledgeable or experienced in terms of social welfare law. Rather, as can be seen from his statements and his appearance on record, the defendant apparently belongs to the circle of at most average knowledgeable and sensible people. In relation to the decision of an authority, i.e. an institution under public law, which aroused trust in the correctness of the respective measures not only because of the principle of the legality of the administration, but also according to its objectives and its professional competence, it was not to be expected from him he appealed at random.

Therefore, the defendant did not act incorrectly, after he had received the negative decision and considered its reasons, presented to the supervisory court during the ongoing objection period and after he reported the state of affairs and the basic reason for the decision had asked for his dismissal from office with the admission of his excessive demands by the now imminent affairs. He could then assume that he would be advised by the guardianship court in the care placed on him about the care until his discharge from office and, if necessary, guided by instructions. Since the court apparently saw no reason to take note of the negative decision, to examine its reasoning and to discuss with him, the defendant, how to proceed, the defendant was allowed to submit his timely report and the complaint soothe his excessive demands. Through his visit to the supervisory court, the opening of the status of the social procedure and the revelation of his helplessness and helplessness, he had just turned to the office that, because of its supervisory and advisory function, placed him in front of him and like a lawyer for further help was given. He did not need to do more to fulfill his official duty of care.

LG Cologne, judgment of 14.05.1997 - 13 S 17/97, ​​FamRZ 1998, 919

The application for social assistance for the cared for falls into the area of ​​personal care and not the task of property management. If the supervisor is only responsible for asset management, he is not liable for the damage resulting from a late application for social assistance.

OLG Munich, judgment of July 29th, 1999 - 1 U 4973/98, OLGR 2000,318

  1. The care center of a district office, whose area of ​​responsibility includes the property management for the person under care, does not act in breach of duty if, in the justified trust that a lawyer commissioned by the person under care will take care of the keys to the property of the person under care will take care of it, the water pipes in the Winterize property.
  2. Without sufficient indications that the lawyer would not adequately fulfill his duties towards the person under care, there is also no reason to monitor the lawyer's activities separately. In this case, the district is not liable for damage caused by the bursting of pipes and radiators as a result of frost. He is also not obliged to commission expensive repairs at his own expense.

Note: After a note in OLGR legally binding by non-acceptance decision of the BGH v. 29.6.2000, file number III ZR 299/99.

LG Berlin, judgment of December 20, 1999 - 34 O 433/99, FamRZ 2000.1526

  1. To the liability of the supervisor towards the supervised person for an improper failure to terminate a tenancy.
  2. For seizure and transfer of the person's claim for damages against their supervisor.
  3. A reservation of consent is not necessary and also not suitable to give the supervisor the means to disregard a declared will of his supervisor.

LG Berlin, judgment of 20.09.2000 - 11 O 75/99, BtPrax 2001, 83 = NJWE-FER 2001, 210

A supervisor is not liable to the person concerned for compensation for the pension payments lost due to late submitting a pension application if, at the request of the person concerned, an attempt should first be made to restore their earning capacity through rehabilitation measures.

AG Laufen, judgment of October 19, 2000 - 1 C 713/00, FamRZ 2001, 1554

One of the secondary duties of a nursing service who has taken on the so-called small and large household care of a person being looked after is to occasionally check the apartment for technical defects and, if necessary, to arrange for their abolition. Any control obligation on the part of the supervisor is of secondary importance.

OLG Schleswig, Decision of 23.05.2001, 2 W 8/01, BtPrax 2001, 211 = FamRB 2002, 15 = MDR 2001, 1299 = FGPrax 2001, 194 = NJWE-FER 2001, 257 = NZM 2001, 868 = OLGReport Schleswig 2001, 346

No approval of renting a residential building against the will of the person in care if he does not want it to be rented and if he is not dependent on rental income according to his circumstances. This also applies if the person being looked after is incapable of doing business and his point of view appears objectively unreasonable.

OLG Hamm, judgment of 09.01.2001 - 29 U 56/00, FamRZ 2001.861 (with note Bienwald p. 863) = RdLH 2001.180; m. note Beck BtPrax 2001, 195

  1. If the supervisor is only assigned the task of health care, but not the right to determine the place of residence for the supervised person, he or she is entitled to accommodate the supervised person i. S. of § 1906 I BGB and the application for the guardianship court approval not to.
  2. The supervisor who decides on the deprivation of liberty and accordingly applies for permission from the guardianship court without having been assigned the necessary tasks, is acting contrary to his duty.
  3. If this supervisor is a lawyer, he acts negligently if he does not adequately check his decision-making authority with the help of the legal commentary literature, but rather submits it without reflection.
  4. If this supervisor-lawyer relies on a - allegedly - different local practice, this does not relieve him, because the generally customary care - without local reference - must be expected from him

LG Berlin, judgment of 10.05.2001 - 31 O 658/99, BtPrax 2001, 215 = bt-info 2002, 26 (LS) = FamRZ 2002, 345 = FPR 2002, 20

  1. The assertion of pension claims is part of the responsibilities of the supervisor, who is responsible for asset management.
  2. The person concerned has a claim for damages against the supervisor if he culpably fails to submit an application for a disability pension in good time.

AG Hamburg - Harburg, judgment of 09.10.2001 - 641 C 609/00, bt-info 2002,66 (LS) = NJW-RR 2002,511

  1. The heir of the carer is only entitled to a claim for damages against the carer if the carer's behavior caused damage to the carer himself.
  2. If the supervisor stopped paying the life insurance premiums, the fact that the heir receives a lower insurance amount does not result in any damage to the person being looked after.

OLG Schleswig, judgment of 08/30/2002 - 1 U 176/01, OLGR 2003.8 = SchlHA 2003.74

  1. There is no room for personal liability on the part of a supervisor if the supervisor has clearly concluded a maintenance contract for the person being supervised solely in his supervisory capacity. This also applies if the supervisor is a lawyer and, in relation to the supervised person, has negligently failed to assert their social assistance claims.
  2. For the enforcement of a claim for damages due to such a breach of duty against the person being cared for, it must be substantiated that the person being cared for would actually have been entitled to receive social assistance. Findings from the administrative dispute proceedings between the person being cared for and the social welfare provider about the violation of social law obligations to cooperate do not have any binding effect in the compensation process against the carer.

LG Freiburg i.Br., judgment of 04.09.2003, 3 S 478/02; BtMan 2005, 105

As part of the liability assessment of the well-being of the person concerned i: .S. 1901 BGB, the supervisor may accept financial disadvantages for the person being cared for if the well-being of the person concerned is preserved at the same time. The supervisor is to be granted a dutiful discretion in this area. The judgment was based on a case according to which the supervisor had agreed with the landlord of the person being looked after to assume additional rental costs in order to secure the living space permanently.

BGH, judgment of September 18, 2003 - XII ZR 13/01, BGHReport 2004, 20 = BtPrax 2004, 30 = FamRZ 2003, 1924 = FPR 2004, 141 = FuR 2004, 171 = NJW 2004, 220 = Rpfleger 2004, 97

  1. The supervisor's liability for damages in the event of a breach of duty in the conclusion of a contract approved by the guardianship court.
  2. Breach of duty by the supervisor by failing to provide necessary security in connection with the conduct of business of a GmbH.
  3. Any liability for damages on the part of the supervisor is not excluded by the fact that the guardianship court has approved a contract.

Any liability for damages on the part of the defendant is not excluded by the fact that the VormG has approved the contract (see BGH, judgments of January 15, 1964 - IV ZR 106/63 -, FamRZ 1964, 199, and of 05.05.1983 - III ZR 57/82 -, FamRZ 1983, 1220); because VormG and supervisor have, as also made clear by § 1829 I S. 2 BGB, an independent examination obligation. It is true that the guardian can exceptionally be exonerated from the charge of unlawful culpable behavior through an approval of the VormG - for example, if the approval is essentially about legal issues, the VormG is aware of all the facts relevant to its answer and the supervisor, especially if he is is not legally pre-trained, so it can be assumed that the authorized legal transaction is being concluded in accordance with the law. But that's not how things are here. The standard of care required of a supervisor is determined by the life circle as well as the legal and business experience of the supervisor. The defendant had just been appointed as a supervisor in view of his specialist knowledge as a lawyer. A lawyer as a supervisor can be expected to ascertain - if necessary with the aid of specialist literature - of the legal risks of a transaction to be concluded by him and to take precautions in the interests of the supervised person to exclude or reduce identifiable risks. This is especially true when these risks - as here - are obvious. The question of whether in the present case the VormG also had to recognize these risks and remedial options after the facts communicated to it can remain open; even if this question were to be answered in the affirmative, this would not relieve the defendant of the obligation to observe the due care he owed as a legal advisor.

BayObLG, decision of August 11, 2004 - 3Z BR 102/04, BayObLGR 2004,447 = FamRZ 2005, 389

The duty of the supervisor to invest the supervised person's money securely and to have a blocking note entered. Even if the person being looked after has expressed the wish not to want to invest the money, this is not decisive. Although a supervisor has to comply with the wishes of the person being cared for, this only applies to the extent that such a wish does not run counter to his or her welfare, Section 1901 III BGB. It is obvious that keeping a sum of € 13,400 at home - i.e. without any interest income - is not for the good of the company. can correspond.

BGH, judgment of November 3rd, 2004 - XII ZR 332/01, BGHReport 2005, 434 = BtPrax 2005, 104 = FamRZ 2005, 358 = MDR 2005,510 = NJW-RR 2005, 297

On the scope of the duties of an asset manager in asserting and securing profit shares from a company and on the prerequisites for a claim for damages due to the breach of these duties.

The assessment of whether the behavior of a nurse constitutes a breach of duty is essentially of a judicial nature. However, it must be checked in the appellate body whether the appellate court misunderstood the legal concept of breach of duty in its assessment (see for example BGH judgments of January 26, 1984 - I ZR 188/81 - WM 1984, 556, 558 and of July 3, 1986 - I ZR 171/84 - WM 1986, 1413, 1414; st.Rspr.). That’s the case here. A breach of duty lies in any violation by a caregiver of the requirement of faithful and conscientious conduct of office. This requires the consistent pursuit of the interests of the foster child. The defendant failed to do this. Since he, as the representative of the plaintiffs in the legal dispute with Ruth O., asserted the validity of the assignment of the usufruct share to the plaintiffs, it was part of the logical protection of the plaintiffs' interests to ensure that they receive the benefits from the usufructuary right to which they are supposedly entitled. The defendant therefore had to ascertain which profits would accrue to the plaintiff in the future - subject to effective assignment of the usufruct; he also had to consider how he could reasonably assert claims to these profits in light of the ongoing process. If this obligation had been properly fulfilled, the legally qualified defendant would have found it necessary to clarify the amount and whereabouts of the winnings due immediately after the due date and at least - in accordance with the previous practice - to request that they be deposited.

LG Cologne, judgment of 29.11.2004 - 4 O 215/04, FamRZ 2006,1874 (LS)

By failing to apply for the survivor's pension for the plaintiff in good time, the defendant culpably breached his duty to provide proper care to the plaintiff. In accordance with Section 1896 (1) sentence 1 of the German Civil Code, the defendant was entrusted with taking care of the plaintiff, including with regard to property management. Asset management includes the duty to maintain, utilize and increase the assets of the person being looked after within the limits set by the law. This also includes the timely assertion of pension claims and other rights to which the person in care is entitled, which benefit their assets.

AG Kirchhain, judgment of December 29, 2004, 7 C 277/04, RdLH 2005, 35

Regarding the duties of the supervisor to inform the social welfare office about the approval of transitional allowances for the supervised. A violation of the law can result in a claim for damages by the person being cared for against the carer if recourse is made to the person being cared for.

LG Nürnberg-Fürth, judgment of 13.07.2005 - 17 O 8674/03, BtPrax 2006,112 (with note Meier)

A claim for damages against the supervisor presupposes, on the one hand, a breach of duty on the part of the supervisor. However, this breach of duty must also be causal for the damage that has occurred. If the damage would have occurred even if the supervisor had acted in accordance with his duties, a claim for compensation is ruled out. Even the supervisor's failure to take out professional liability insurance does not justify a claim for damages, as the insurance is only required if there is a claim for damages against the policyholder - the supervisor

The court is also convinced that the state fire insurance would have terminated the contract if the defendant had duly notified the increased risk (improper firing of an oil stove) in good time. At the time the damage occurred, there would have been no fire insurance for the building at all, so that the insurance would no longer have an obligation to provide benefits at this point in time. Thus, the defendant's breach of duty, namely the failure to provide this notification, was not causal for the damage suffered by the plaintiff.

OLG Munich, decision of 04.08.2005, 33 Wx 81/05, BtPrax 2005,234 = FamRZ 2006,64 (LS) = OLGR 2006,62

Suspicions expressed without concrete evidence that a guardian is abusing his position to shift the assets of the guarded person into his own property and thereby reduce inheritance claims cannot justify a right to inspect the guardianship files.

  1. Requirements for a legitimate interest in accessing files. Third parties, including relatives, are generally not authorized to inspect the financial circumstances of other people.
  2. If the court has affirmed a legitimate interest, it will decide whether to grant access to the files at its best discretion.

Munich Higher Regional Court, judgment of August 4th, 2005 - 33 Wx 029/05, 33 Wx 29/05; BtPrax 2005,199 (LS) = FamRZ 2006,62 (LS) = OLGR 2006,192 = Rpfleger 2006,14

A supervisor in the asset management task group has the duty to assert claims for enrichment against third parties even if they have already received assets from the legally incapable supervised person prior to the appointment of the supervisor.

  1. Daughter has no right of appeal against refusal to dismiss an asset manager.
  2. An asset manager also has to take care of the proper handling of black money of the supervised person.
  3. The task of an asset manager also includes the assertion of claims for damages to which the person under care is entitled against third parties, regardless of whether the reason for these claims was laid during the course of the care or already beforehand.
  4. It is important for the exercise of asset management that the person being looked after retains and increases their assets in order to be able to support them for as long as possible. A guardian violates this duty if he does not consistently pursue the interests of the guarded person to recover their assets after suspicious asset shifts (e.g. due to void powers and if the guardian cannot assess the negative consequences of asset shifts for his or her property).