Who is a guardian and how to become one?

Chapters of the article

• Why is a guardian appointed?
• Guardianship of a child
• Who can be appointed guardian?
• How does a guardian proceed?
• Guardian for the administration of the estate
• Guardianship of adults
• Limited capacity
• Application for appointment of a guardian

Guardianship is a form of representation that serves to protect the interests of the ward. Guardianship is decided by the court, either for general representation or for specific proceedings. Guardianship of children is most commonly encountered, but can equally apply to adults.

Why is a guardian appointed?

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.

Child custody

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:

• there is a risk of a conflict of interests between the child on the one hand and another person on the other,
• the guardian does not sufficiently protect the interests of the child,
• the child’s interests require it for another reason,
• if the law so provides.

The court shall always state why it appoints the guardian, how the rights and duties of the guardian are defined and for how long the guardian 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.

Who can be appointed guardian?

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.

How does the guardian proceed?

Before taking any legal action, the guardian should first of all obtain the child’s opinion, provided that this is possible. If appropriate, he or she also seeks the opinion of other persons, such as the parents or the guardian.

The guardian for the administration of the estate

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 conduct is 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. He must have certain of his actions approved by the court.

In administering the estate, the guardian has the right to deduct from the proceeds of the child’s estate the necessary expenses relating to the administration of the child’s estate. He shall also be entitled to a reasonable remuneration, the amount of which shall also be determined by the court having regard to the nature of the proceeds of the child’s estate.

Guardianship of adults

As mentioned at the beginning, guardianship is not limited to children. The court also appoints a guardian if the adult has lost the legal capacity to act (so-called incapacity) or is missing. In selecting a guardian, the court takes into account the wishes of the ward and his or her needs.

Limited legal capacity

In proceedings for 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. It will then take this into account in its decision. Guardianship, on the other hand, is defined only to the extent that the person under guardianship is incapable of legal action.

The limitation is typically determined by the amount of money that the ward can dispose of. For example, he or she may still buy ordinary goods, foodstuffs and the like, but may not, for example, acquire or sell real estate on his or her own. Similarly, decisions about the provision of health services may also be restricted.

The time limit for the restriction 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 to extend the period of restriction of legal capacity in the context of a new procedure for the extension of the period of restriction.

Proposal for the appointment of a guardian

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 he or she has not made a preliminary declaration, the court appoints the guardian, keeping in mind the best interests of the ward. The guardian does not have to be a close person, there is also the institution of a public guardian.