Lehrstuhl für Bürgerliches Recht, Zivilprozessrecht, Medizinrecht und Rechtsvergleichung

Adult protection law


Adult protection law is the law governing the support and protection of adults who are unable to manage their own affairs due to illness or disability. Traditional instruments include incapacitation, guardianship of adults and (compulsory) guardianship of infirmity. These instruments are still widely used around the world today. However, they have been heavily criticized for some time now, as they represent a major encroachment on the fundamental and human rights of the person concerned.

In Germany, a new and flexible system was established in 1992 with the Care Act in place of incapacitation, guardianship and guardianship against infirmity, which, in addition to legal care as a central state instrument of support and protection, also recognizes the privately organized power of attorney. Other instruments of private provision are the care directive for the organization of legal care and the living will.

With the reform of guardianship law in 2023, Germany introduced the mutual representation of spouses and registered partners in health emergencies (Section 1358 BGB) as the third pillar of adult protection alongside the power of attorney and legal guardianship.

Prof. Dr. Dr. h.c. Volker Lipp has been conducting research in the field of adult protection for a long time, both in Germany and internationally. He has also contributed to the 2023 reform as a researcher and as deputy chairman of the Betreuungsgerichtstag e.V. through lectures and publications as well as in working groups of the Federal Ministry of Justice and through statements in the legislative process. His publications on the 2023 reform and on adult protection can be found here, his lectures and other activities can be found here.

Legal guardianship is a form of state-organized adult protection. A legal guardian is appointed by the guardianship court if the person concerned is no longer able to manage their own affairs due to illness or disability and the necessary support and protection cannot be guaranteed elsewhere. The guardian should support the person concerned in managing their affairs and protect them from others taking advantage of their weakness and vulnerability or from harming themselves. Care must be consistently geared towards the individual needs of the person concerned and their remaining abilities must be taken into account. The guardian's scope of duties must be precisely defined by the court. The guardian may only make use of their power of representation if this is necessary. It is not possible to appoint a guardian against the free will of the person concerned. The person concerned is not restricted in their legal capacity to act by the legal guardianship. The court can only order a reservation of consent for financial matters if this is necessary to avert considerable danger.

Information on legal guardianship can be found on the website of the Federal Ministry of Justice.
An alternative to state adult protection is to make your own provisions for old age and illness. This includes, above all, the privately organized health care proxy and the living will. In addition, the care directive enables self-determined organization of legal care.

Templates can be found here:

Reform of the guardianship law in 2023: “Towards more self-determination in care”

In the years 2015 and 2017 two research projects were carried out on behalf of the Federal Ministry of Justice and Consumer Protection concering the topics “Quality in legal care” and “Implementation of the principle of necessity in care law practice with regard to upstream ‘other assistance’” These showed that the greatest possible self-determination of persons receiving care in the run-up to and within legal care, as demanded in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD) of 13 December 2006, has not yet been sufficiently realized and that there are quality deficiencies in the practical implementation of the legal requirements. Against this background and further criticism of the law and practice, care law has been comprehensively reformed by the Act on the Reform of Guardianship and Care Law, which was passed on May 4, 2021 and came into force on January 1, 2023. The reform aims to place the self-determination of the person being cared for more strongly than before at the center of care law and care practice. The regulations on health care proxies have also been reformed.

Information on the reform can be found on the website of the Federal Ministry of Justice.