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Comment: On Wikipedia, all stated facts should be supported by a citation to a reliable source. Currently, large portions of this draft are unsourced - please add necessary citations before resubmitting. Thank you. ~Liancetalk 00:44, 12 May 2024 (UTC)
Guardianship is a Swiss legal instrument that replaced guardianship in adult protection law on 1 January 2013. The guardianship enables the officially ordered legal representation of a person of legal age who lacks the capacity to act independently due to a lack of judgment.[1]
The regulation of guardianship of minors in child protection law is set out in Art. 327a-c ZGB, which came into force on 1 January 2013. The provisions of adult protection law, namely on the appointment of the guardian, the management of the guardianship and the involvement of the adult protection authority, apply mutatis mutandis.[2]
Legal situation until 31 December 2012 edit
Organisation of the guardianship edit
The guardianship authorities included the guardianship authority and the supervisory authority, the guardian and the counsellor. According to Article 367 ZGB (old version), a guardian had to protect and represent all the personal and property interests of the incapacitated or incompetent person under guardianship.[3] In contrast, a counsellor was only appointed for individual transactions or entrusted with the management of assets.
Official measures edit
Three types of measures were distinguished in the guardianship system:
- The least restrictive measure was that of a conservatorship, which was appointed by the guardianship authority at the request of the person concerned or ex officio if a person of legal age was unable to act in an urgent matter due to illness or absence and could not appoint a representative. The guardianship authority could also provide assistance if the legal representative of an incapacitated or incapacitated person (e.g. parent/child) represented interests other than those of the person being represented.[4]
- A person placed under an advisory board was constrained in their capacity to act with regard to economic legal acts, such as the purchase, sale of property, loans, and gifts. The objective of the advisory board measure was to oversee financial matters.
- In the context of actual guardianship, a distinction was drawn between simple guardianship and deprivation of liberty, which emerged as a distinct category in the 1980s. In both instances, this constituted the most restrictive form of guardianship measure. Such orders were granted in exceptional cases where the individual in question required special protection due to a mental illness, mental deficiency, alcoholism, other addictions or mismanagement. In essence, guardianship effectively negates a person's capacity to act. In the event that the individual in question was mentally ill, mentally deficient, addicted to alcohol, suffering from other addictions or seriously neglected, custodial deprivation of liberty was imposed. Such individuals were placed in an appropriate institution, which could be either a closed or open psychiatric ward or a detention centre.[5]
Adult protection law edit
Since 1 January 2013, a distinction has been made between three different types of guardianship and comprehensive guardianship. The previous category of custodial deprivation of liberty has been replaced by the new category of custodial placement. The new body is the Child and Adult Protection Authority (KESB).[6]
Guardianships edit
Types edit
The law distinguishes between the
- Accompanying (Art. 393),
- Representation (Art. 394 & 395) and
- Assistance (Art. 396) and
- Comprehensive guardianship (Art. 398).[7]
The areas of responsibility of the guardianship may include personal care, property care or legal affairs, and should correspond to the needs of the person concerned (Art. 391).[8]
Subsidiarity and proportionality edit
With regard to the requirements, it depends on the extent to which the person concerned is still able to manage their own affairs and, if applicable, has designated a person authorised to represent them or if there is a case of legal representation.[9]
A person with the capacity to act may appoint a third party to represent them in the event that they become incapable of judgment by means of a publicly notarised advance care directive (Art. 360)[9] or a living will (Art. 370). In article 374ff the ZGB regulates cases of legal representation, in particular those between spouses and registered partners. In such a scenario, there is no room for the appointment of an officially designated guardian.[10]
Effect edit
The various forms of guardianship have differing effects, particularly in terms of whether the capacity to act of the person concerned is retained, restricted, or completely lost.[11]
Involuntary commitment edit
Literature edit
- Taban, Özlem (2012). "Das neue Schweizer Erwachsenenschutzrecht". Interdisziplinäre Zeitschrift für Familienrecht (in German) (2): 80–85.
- Noser, Walter; Rosch, Daniel (2016). Erwachsenenschutz: Das neue Gesetz umfassend erklärt - mit Praxisbeispielen (in German) (3 ed.). Zürich: Beobachter-Edition. ISBN 978-3-85569-999-5.
References edit
- ^ See articles 16, 17 from the Swiss Civil Code.
- ^ See Article 327c, paragraph 2 from the Swiss Civil Code.
- ^ Article 367 from the pre-2013 version of Swiss Civil Code.
- ^ Art. 392 (pre-2013 version).
- ^ Art. 397a (pre-2013 version).
- ^ Noser, Walter (2012-12-03). "Helfen statt bevormunden" (in Swiss High German). ISSN 1661-7444. Retrieved 2024-05-11.
- ^ "Merkblatt Beistandschaften (Art. 393 – 398 ZGB)" (PDF). Kindes- und Erwachsenenschutzbehörde (KESB) Region Rorschach (in German). Archived from the original (PDF) on 19 Mar 2017.
- ^ See article 391 of the Swiss Civil Code in the newest version.
- ^ a b Hungerbühler, Ivo; Stutz, Christoph. "Der Vorsorgeauftrag nach revidiertem ZGB" (PDF). Archived from the original (PDF) on 19 Jun 2016.
- ^ See articles 360, 388, 389.
- ^ Nigg, Verena (2012). "Arten und Wirkungen von Beistandschaften" (PDF). Schaubild. Archived from the original (PDF) on 31 Mar 2022.
External links edit
- ZGB. Adult protection, personal law and child law (in German) Amendment of the Swiss Civil Code, documentation on the website of the Federal Assembly.
- Albert Guler: Die wichtigsten Neuerungen des Kindes- und Erwachsenenschutzrechts (in German) 8. November 2012.
