The terms guardian and guardianship can sometimes be confused, for example, with the terms foster parent or adoptive parent. There is some similarity, but the underlying principle is different. Let’s take a closer look at what exactly guardianship consists of and how one can become a guardian.
Guardianship is a form of legal representation designed to protect the interests of the ward. Guardianship is decided by the court, either for general representation or for specific proceedings. Guardianship is most commonly found in the case of children, but can equally apply to adults.
A guardian is appointed by the court when the person under guardianship is unable to take care of certain matters on his or her own, for example because of a mental or intellectual disability. Similarly, a guardian may be appointed for a child who has not reached a certain level of intellectual maturity to effectively defend his or her interests in court or manage his or her property, for example. In such a case, however, we are far from talking only about children who do not have a guardian. Often, on the contrary, it is a situation where the actions of the legal representative could lead to a conflict of interest. In this case, a so-called conflict guardian is typically appointed for the purposes of divorce or custody proceedings.
A guardian may also be appointed for a child after the death of his or her parents. Indeed, when little Bruce Wayne (aka Batman) was taken in by Alfred the butler, it was exactly this form of relationship.
Contact us and we will create a tailor-made solution for you. Our experts will send you a proposal and calculation within 24 hours. If you use our services to solve your problem we will refund your fee.
I want to find a tailor-made solution
The details of this type of guardianship are regulated by the Civil Code. It states that a guardian is appointed for a child in the following cases:
The court shall always state why it appoints the guardian, how his rights and duties are defined and for how long he is appointed. It shall also decide whether reports are to be made to the court and whether the guardian is entitled to reimbursement of all or some of his expenses and to remuneration.
Tip: The most common form of proceeding in which a guardian is appointed for a child is a divorce proceeding. You can read how to proceed in our article.
In the case of a child, it is usually an employee of the OSPOD (child social protection authority), or, in the vernacular, an official from the social welfare office. The guardian then attends court hearings, for example, and the child’s participation is usually no longer necessary.
The guardian should seek the child’s opinion, if possible, before taking any legal action. If appropriate, he or she also seeks the opinion of other persons, such as the parents or guardian.
If a guardian is appointed to administer the child’s property, the court also defines the extent of the property and, as a rule, the manner in which he or she is to dispose of the various parts of the property and what actions are prohibited. In his or her role, such a guardian is subject to the supervision of the court, in particular as to whether he or she takes unreasonable risks and exceeds his or her powers. In particular, he or she must not dispose of the ward’s property arbitrarily and needs the court’s approval for major decisions (e.g. sale of property) .
The guardian has the right to deduct from the proceeds of the child’s property the necessary costs related to the management of the child’s property. He or she is also entitled to a reasonable remuneration, the amount of which is also determined by the court taking into account the nature of the proceeds of the child’s estate.
As mentioned at the beginning, guardianship is not limited to children. The court also appoints a guardian if the adult has limited legal capacity or is missing. In selecting a guardian, the court will take into account the wishes and needs of the ward.
Find out what other forms of foster care we know.
In the context of proceedings for the restriction of legal capacity, the court must first of all assess the extent to which the person is legally capable of acting on his or her own. The court must not restrict capacity more than is necessary and must always consider whether more lenient measures, such as support measures for impaired capacity, are not sufficient. It will then take this into account in its decision. Guardianship, on the other hand, is limited to the extent that the person under guardianship is incapable of legal action.
The limitation often refers to the maximum amount that the ward can dispose of. For example, she can still buy ordinary goods, groceries, etc., but she cannot, for example, acquire or sell real estate herself. Similarly, decisions about the provision of health services may also be restricted.
The time limit for the limitation of legal capacity is set by law at a maximum of three years. The exception is where it is clear that the ward’s condition will not improve in three years, in which case this period may be extended to five years. The court may decide in new proceedings to extend the limitation of capacity.
Tip: We have discussed in detail the procedure for limiting your legal capacity in our article.
In order to initiate proceedings for restriction of legal capacity, the court must receive a petition for restriction of legal capacity. The petition is filed with the district court of the residence of the person under review. The petition may be filed by a family member or by a medical institution.
The petition shall identify the petitioner and the ward, who shall also describe the reasons why he/she is legally incapable of acting on his/her own and attach appropriate evidence, e.g. a medical report. The guardian’s proposal itself is also included.
The court shall order a hearing and appoint a guardian for the person concerned. If the ward has expressed a wish to be guardian, the court takes the declaration into account. If the ward has not made a preliminary declaration, the court shall appoint a guardian taking into account the ward’s best interests. The guardian does not have to be only a close person; there is also the institution of a public guardian. If no suitable person can be found among the relatives, the guardian may be a municipality or another legal person who acts as a public guardian.
Guardianship serves to protect the rights and interests of persons who are not legally capable of acting independently, whether they are children or adults with limited legal capacity. The court appoints the guardian, giving preference to persons close to the ward or appointing a public guardian, such as a municipality. The guardian has a duty to act in the best interests of the ward, to protect the ward’s property and to respect the ward’s will. The court may change or revoke the guardianship if the ward’s health improves. Accountability and transparency are key in the exercise of the guardian’s functions, especially in the management of the ward’s finances and property.
We can help you protect the safety, property, or other interests of a loved one who is no longer able to act fully legally on his or her own through a motion to limit capacity. We will also protect yourself if someone is trying to limit your legal capacity without justification.
Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.
In person and online. Just choose the appropriate service or opt for an independent consultation when you are unsure.
