- How this works
- Legal capacity
- Types of support
- Areas of life
- Further reading
This Betreuungsverein is one example for the work of these local associations that undertake in Germany the recruitment, training and management of custodians (Betreuer). They are independent organisations that facilitate the implementation of the German “Custodianship Law” (Betreuungsrecht) and work in close cooperation with the respective courts and social services.
Recruitment, training and management of custodians (Betreuer).
In Germany, people with intellectual disabilities at 18 have full legal capacity. The Civil Code, however, foresees that if persons are unable, temporarily or permanently, to manage their affairs, the Court can appoint a custodian. Even if persons are subject of a custodianship measure, they remain legally fully capable whatever is the severity of their disability in the custodianship procedure.
The rights and duties of the custodian are described in the Law on “Betreuung”. The will and well being of the persons are of paramount importance. Custodians take care of social and legal issues and help the persons to achieve a self-determined life. This does not mean that these persons lose their right to decide about their life, it is only about assistance.
The areas of work of the custodian are:
Description of practice
The Betreuungsverein “Leben mit Behinderung” (Living with disability), is a non-profit organization for Betreuung, working for the support of voluntary “Betreuer” (custodians). Any person can be a custodian. Volunteers work and exchange together. Each of them has special competences, often due to their own professional qualification and their competences can be matched to the support needs of the person. The Association is permantly recruiting and counseling custodians. It is sometimes a challenge to recruit volunteers outside the families of people with intellectual disabilities. The custodians are volunteers but they receive a small compensation per year to cover their expenses.
The choice of the custodian is made by the judge, who will ask and try to meet the person’s wishes. Sometimes both parents can be jointly appointed as custodian to support their son or daughter. The Court can decide to appoint only one in case this would have a significant financial implication on the person.
It can be difficult to find a custodian, especially when the person requires intensive support. It can happen that voluntary guardians drop out because of the difficulties in support. In addition, when health care decisions are to be taken, family members have difficulties to step out and volunteers can find it difficult to support the person in this area.
Voluntary guardians are liable, the Court insures them automatically. The Association of voluntary supporters has in addition to report to the Court about the work of new volunteers, family members and other volunteers.
Leben mit Behinderung Hamburg is also looking at alternatives to Betreuung, making use of powers of attorney and advanced directives by people with intellectual disabilities. This is a new project for people with intellectual disabilities, who have little support needs. Power of attorney is used, on a case by case decision to allow them to enter in a contract. The person is considered capable of contracting but, for particular circumstances, a power of attorney can be needed. In that case, the Court does not intervene but only the notary.
It is noteworthy that this presents an excellent model for a close cooperation between Courts and local NGOs. While the Court still has the responsibility for the selection and control of a custodian, the NGO “Betreuungsverein” can use its excellent community contacts to recruit, train and support custodians. It also provides an important platform for custodians exchanging experiences and organising mutual support.