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Adult Guardianship: German Law Offers Insights

2012.06.26
Makoto Arai

Professor, Faculty of Law, Chuo University
Areas of Specialization: Civil Law, Trust Law

I Introduction
 

Of the total population of 120 million in Japan, 200,000 people are currently using the statutory guardianship system. In contrast, Germany has 1.3 million users of the statutory guardianship (Betreuung) system. Out of 82 million of its total population. This means that there are 6.5 times more users of the guardianship system in Germany, and moreover, the number is increasing by 10% every year. This article aims, through identifying the reasons why German adult guardianship law (Betreuungsgesetz) has attracted so many users, to find the future direction of our adult guardianship system.

II The characteristics of the German adult guardianship law
 

Most notable characteristics of the guardianship system are the following:
Firstly, it introduced the consent reservation system, in which the appointment of a guardian (Betreuer), the guardianship institution, does not necessarily result in the restriction of the legal competence of the person under guardianship, and the court grants the right of consent to the guardian on a case-by-case basis as needed (and only to the extent that is necessary).
 

The second is the emphasis on physical custody matters. As part of his or her duties, the guardian is expected to play the role not only of a property custodian, but also of a legal coordinator regarding the physical custody matters of the person under guardianship. This does not mean, however, that the guardian must perform care and nursing activities as actual deeds done by his or herself. To the contrary, in the German law, duties of the guardian are confined to the legal processing of the matters of care and assistance. To further clarify this in express terms, in addition to the change of the term of guardianship to “legal guardianship (Rechtliche Betreuung),” the revised guardianship law of 1999 newly stipulated that “the guardianship includes all activities that are necessary to attend to the affairs of the person under custodianship from a legal point of view in accordance with the following provisions” (Section 1901, Paragraph 1 of the new German Civil Code).
 

Thirdly, it introduced the regulations on public surveillance regarding important physical custody matters. With regard to the processing duties of the guardian, the guardianship court’s approval, which is connected with the stringent requirements of positive law, is required for matters such as medical treatments that involve a risk of fatality, sterilization, commitment to institutions or similar measures, and eviction of house.

The fourth is related to respecting the will of the person (the person under guardianship). The basic principle of the guardianship law lies in respecting the right of self-determination. Accordingly, as long as it is not against the welfare of the person under guardianship, his or her own wish and opinion must be prioritized when performing matters of guardianship, and the guardian must respect the person under guardianship as a distinct personality and process his or her duties in consultation with the person under guardianship (Section 1901, Paragraph 2 and 3 of the new German Civil Code).
 

III Support organizations 

 

The German adult guardianship law has a distinct characteristic in that the guardianship system is supported by administrative bodies related to welfare policy and private care associations, and the court functions with their support (see the figure). The division in charge of the guardianship in municipalities is the division involved with welfare policies (care authority and care department), and officials in charge conduct surveys on the person and recommend appropriate guardians. The guardianship associations are private organizations operated by NPOs and religious entities. The associations are staffed with full-time certified social workers and law specialists, and they also train and supervise the voluntary honorary guardians. The guardianship court performs its duties in cooperation with the office in charge in municipalities and guardianship associations.
 

Such a trinity relationship, so to speak, is clearly established in the law, and the administration, private sector, and judiciary work together to drive the guardianship system forward. In order to make our country’s adult guardianship system function to the fullest, we have many things to learn from the German-style support organizations.

Additionally, activities by honorary guardians in this network of the guardianship system are also salient.


IV Summary

In Japan, a new adult guardianship law was implemented in April 2000. Its use has been stagnant, however, and there are many points in its content that must be fundamentally revised.
 

The biggest reason for such a wide use of the German adult guardianship law is, as stated above, the backup provided by support organizations. Specifically, the fact that it is stipulated clearly in the law is important. In Japan, measures to this point are definitely missing.
 

I think that the German example is indicating the direction of our country’s adult guardianship law. Three concrete suggestions can be made for the adult guardianship law in Japan.
 

Firstly, it is imperative to immediately establish supporting organizations for a wider use of the adult guardianship system. The support to be provided by the (welfare) administration and private organizations should be institutionalized. In my estimation, establishing supporting organizations is the primary lesson to learn from the German example.
 

Secondly, it is also urgent to expand potential guardians of adults. The securing of professional guardians, training of citizen guardians, and further guidance and supervision to kinship guardians must be implemented.
 

Thirdly, there is a pressing need to clearly define matters of physical custody. I think that granting the right of consent to medical treatment is a particularly inevitable issue.
 

Chuo University International Week No. 3 (Theme; Germany)



Makoto Arai
Professor, Faculty of Law, Chuo University
Areas of Specialization: Civil Law, Trust Law

Born in Niigata Prefecture in 1950. Graduated from the Faculty of Law, Keio University. Dr. jur. at Ludwig Maximilians University Munich in 1979. He was at Chiba University, University of Tsukuba and other institutions before taking up his current post in 2011.
The President of the Japan Adult Guardianship Law Association and Standing Director of the Japan Association of the Law of Trust.
He received the Humboldt Research Award in 2006, and the Officer’s Cross of the Order of Merit of the Federal Republic of Germany in 2010.
Current areas of study include the regeneration of the concept of legal instruments, utilization of the trust system in an aging society, and theory construction of the promotion of adult guardianship utilization.
His major works include: Trust Law (3rd ed.) [Sintakuho (dai 3 han)] (Yuhikaku, 2008); Visions of the Trust Law System [Shintakuhosei no tenbo] (co-author, Nippon Hyoron Sha, 2011); Visions of the Adult Guardianship Law System [Seinenkokenho no tenbo] (co-author, Nippon Hyoron Sha, 2011).


 

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