{"id":17078,"date":"2016-03-24T12:24:50","date_gmt":"2016-03-24T11:24:50","guid":{"rendered":"https:\/\/fiala.de\/permits-for-guardianship-of-minors-care-and-administration-of-the-estate\/"},"modified":"2016-03-24T12:24:50","modified_gmt":"2016-03-24T11:24:50","slug":"permits-for-guardianship-of-minors-care-and-administration-of-the-estate","status":"publish","type":"post","link":"https:\/\/www.fiala.de\/en\/permits-for-guardianship-of-minors-care-and-administration-of-the-estate\/","title":{"rendered":"Permits for guardianship of minors, care and administration of the estate"},"content":{"rendered":"

Permits for guardianship of minors, care and administration of the estate<\/strong><\/h2>\n

<\/strong><\/p>\n

    \n
  1. \n

    Introduction<\/strong><\/h3>\n<\/li>\n<\/ol>\n

    A legal guardian can be appointed for an adult: Legal guardianship leads to legal guardianship, \u00a7 1902. The guardianship court may appoint a voluntary guardian (lay guardian) or a professional guardian. The appointment of a suitable volunteer supervisor is a priority. The volunteer counsellor is usually a relative or acquaintance of the person concerned. Committed citizens can also take over voluntary support.<\/p>\n

    The lay caregiver is advised to seek advice free of charge in accordance with \u00a7 1837 and to document the results. The following positions are eligible for consultation:<\/p>\n\n

    – Local court – guardianship court,<\/p>\n

    – Local authority care agency,<\/p>\n

    – Caring clubs.<\/p>\n\n

    In the case of occupational guidance counsellors, a distinction must be made between association guidance counsellors and freelance guidance counsellors.<\/p>\n

    The club supervisor works for a care association and is usually a social pedagogue; in exceptional cases a lawyer. As freelance supervisors, lawyers and social education workers are in the majority. Other professions include educators, pedagogues and psychologists.<\/p>\n

    Career counsellors without a university degree are financially worse off, unless they participate in a post-qualification measure.<\/p>\n\n

    The curator of the estate, guardian and caretaker are regularly equally subject to supervision by the local court in their activities. In practice, there are always uncertainties as to whether a declaration by the trustee of the estate, guardian or advisor requires the involvement of the local court by way of a permit.<\/p>\n

    In the first part, the authorisations to be obtained by the supervisor within the<\/p>\n

    asset provision for non-negotiable, adult beneficiaries. Where reference is made to the guardian, what has been said usually also applies to the curator of the estate and the guardian, although the presentation of differences in the legal design of these different functions is omitted for reasons of space.<\/p>\n

    The focus of this presentation is on problematic licensing requirements of Sections 1810, 1812, 1821 and 1822 (with the exception of the provisions on the transfer and deposit of bearer documents) as well as their exceptions and exemptions, which, with the exception of Section 1907, also apply to the guardian and the curator of the estate. These have to take into account \u00a7 1822 no. 5, the presentation of which, with regard to the comments on \u00a7 1907 Subsection 5, is to be taken into account. 3 is waived. The different legal form in this respect does justice to the fact that the ward acquires legal capacity upon reaching the age of majority and therefore requires different protection than a guardian who is incapable of conducting business.<\/p>\n\n

    The large number of different opinions in case law and literature on guardianship, care and administration of the estate repeatedly lead to considerable difficulties in practice. In the following, the different views are to be presented and evaluated with the aim of counteracting unnecessary applications for permits in order to relieve the administration of justice and to show the safest way for the carer.<\/p>\n

    The starting point for the permits to be obtained by the individual supervisor not exempted under sections 1852 et seq. is section 1908i, which by way of individual referral requires the analogous application of<\/p>\n

    individual rules on parental custody and guardianship. The legislator considered a blanket referral to be inappropriate. Furthermore, it is assumed that no (volunteer) counterpart supervisor pursuant to \u00a7 1908i, Subsection 1, is required to monitor the supervisor. 1 in conjunction with \u00a7 1792 paragraph 2, \u00a7 1799 is ordered — you practically can’t find it.<\/p>\n\n

      \n
    1. \n

      The well-being of the person being cared for<\/strong><\/h3>\n<\/li>\n<\/ol>\n\n

      It is not uncommon for the carer to be exposed to the situation that relatives are anxious to<\/p>\n

      to prevent legal transactions which the guardian deems necessary, either because they have been promised the object of the legal transaction as a legacy or because they wish to preserve the future inheritance undiminished.<\/p>\n\n

      Practical case with solution note<\/p>\n

      <\/strong><\/p>\n

        \n
      1. \n

        General information on the permits to be obtained by the supervisor<\/strong><\/h3>\n<\/li>\n<\/ol>\n

        In principle, there is no legal power of representation without a scope of duties. Therefore, an explicit assignment of the scope of tasks is necessary. The power of representation of the supervisor is specifically limited by<\/p>\n

        – the judicially determined scope of duties,<\/p>\n

        – provisions excluding the legal power of representation,<\/p>\n

        – regulations restricting the legal power of representation, which make the guardian’s actions dependent on the external approval of the guardianship court.<\/p>\n\n

        The supervisor is the legal representative of the person being cared for within the scope of duties assigned to him\/her, \u00a7 1902. He also represents him before courts and authorities. The extent and scope of the power of representation coincides with the scope of the supervisor’s duties. Within the power of representation limited by the scope of duties, the supervisor must observe the barriers inherent in the law governing supervision, in particular obtain the necessary permits.<\/p>\n\n

          \n
        1. \n

          (a) The internal approval<\/strong><\/h3>\n<\/li>\n<\/ol>\n

          During the term of office of the legal representative, the internal permit concerns the relationship between him and the local court as the supervisory authority over his activities.<\/p>\n

          Interior permits can be applied for both before the legal transaction is carried out and afterwards. According to e.g. \u00a7\u00a7 1810, 1823, the guardian should obtain the approval of the guardianship court, according to \u00a7 1811 another investment of money can be permitted; the regulations are therefore purely rules of order. If the required internal approval is not available because it has not been applied for or has been refused, its absence shall not affect the validity of the legal transaction. This includes in particular the approval for:<\/p>\n

          – the opening of accounts in the context of the investment of trust money;<\/p>\n

          – the ordering of securities;<\/p>\n

          – the purchase of investment units (bond or equity funds or shares, as well as the conclusion of a life insurance contract or loan agreement for investment purposes;<\/p>\n

          – the purchase of secured receivables;<\/p>\n

          – the conclusion of the articles of association for participation in corporations and<\/p>\n

          – the trust fund<\/p>\n

          – the approval of the commencement or dissolution of an acquisition transaction and the corresponding articles of association or the participation of the assisted person in the liquidation resolution of the partners as well as the termination of the articles of association by the assisted person and the sale of the share in the company<\/p>\n\n

            \n
          1. \n

            (b) The exempted guardian<\/strong><\/h3>\n<\/li>\n<\/ol>\n

            However, if the parents appoint a guardian for their minor child, they may release him from certain restrictions of sections 1809, 1810, 1812, 1814, 1816 in such a way that he does not require the approval of the counter guardian or the guardianship court for legal transactions not subject to the restrictions, sections 1852 to 1855. In addition, the guardian can be exempted from the obligation to submit annual accounts in accordance with \u00a7 1840, \u00a7 1854. In this case, the guardian must submit a balance sheet every two years. The guardianship court may override this exemption if its observance would endanger the interests of the ward, section 1857. This is the case if the guardian does not have the necessary expertise to manage substantial assets or if he is reluctant to take advice. These exemptions are entitled to the youth welfare office and an association as guardian by law, \u00a7 1857a.<\/p>\n\n

              \n
            1. \n

              (c) The external authorisation<\/strong><\/h3>\n<\/li>\n<\/ol>\n

              The external permit concerns the relationship between the person being cared for and the contractual partner.<\/p>\n

              According to e.g. \u00a7\u00a7 1812, 1821, 1822, 1907, the legal transactions and orders mentioned there require the approval of the guardianship court.<\/p>\n

              In the case of external permits, a distinction must be made between unilateral and bilateral or reciprocal legal transactions.<\/p>\n

              In the case of two-way or reciprocal legal transactions, the subsequent approval, which only becomes effective when the adviser notifies the cosignatory of it, Section 1829 (1). 1 sentence 2 It follows that a contract is pendingly ineffective until the approval becomes effective. The guardian is not bound by the contract, but the cosignatory is, unless there is a case of \u00a7 1830, i.e. the guardian pretends to authorise the cosignatory. The defendant can only end the state of suspense by requesting the guardian to inform him whether the permit has been granted, Section 1829(2). 2. then this notification from the supervisor can only be made within two weeks of receipt of the request. As in the cases of \u00a7 108 para. 2 sentence 2, section 177 subsection 2 sentence 2 only the silence of the representative leads to the invalidity of the legal transaction.<\/p>\n

              Section 1831 sentence 1 applies to unilateral legal transactions, according to which approval must be obtained before the legal transaction is carried out. The unilateral legal transactions pursuant to \u00a7 1831 sentence 1 include in particular the following declarations of intent by the legal representative on behalf of the person in custody or the unknown heirs<\/p>\n

              – the termination,<\/p>\n

              – the withdrawal or the request for conversion or reduction,<\/p>\n

              – the set-off,<\/p>\n

              – the challenge<\/p>\n

              – the approval of the order of a non-authorised person,<\/p>\n

              – the granting of procuration (\u00a7 1822 No. 8),<\/p>\n

              – the acceptance of a performance surrogate as performance,<\/p>\n

              – but not: the acceptance of the service owed or the offer of contract or its acceptance, because both are components of a contract that comes into being. Without this approval the legal transaction is invalid.<\/p>\n

              From a legal point of view, this is a consent, i.e. prior agreement.<\/p>\n\n

              The reason for this is that, unlike in a contract, the opponent of the declaration has no influence on the levy and the associated effectiveness of the unilateral declaration of intent by the guardian.<\/p>\n

              The defendant would be exposed to uncertainty as to whether the declaration would become effective or not. However, the decisive factor is not the time at which the unilateral declaration of intent is made, but the time at which it takes effect. In the case of declarations of intent not requiring receipt, the coming into effect shall coincide with the execution, in the case of persons in need of receipt with access according to \u00a7 130. The consent of the guardianship court must therefore be available at the latest upon receipt.<\/p>\n\n

              Practical case with solution note<\/p>\n

              <\/strong><\/p>\n

                \n
              1. \n

                d) Legal consequence of lack of an internal and external permit<\/strong><\/h3>\n<\/li>\n<\/ol>\n

                If only the necessary internal approval is missing, the legal transaction is effective without further ado.<\/p>\n

                It is conceivable, however, that the guardian is to be dismissed according to \u00a7 1908b, especially if he does not disclose the guardianship and thereby enters into a legal transaction in his favour. In addition, the guardian is liable to pay damages under \u00a7 1833 if the guardian suffers a disadvantage due to the legal transaction. The guardian can even make himself liable to prosecution according to \u00a7 266 StGB<\/a> (German Criminal Code), if he carries out legal transactions within the scope of his scope of duties and thereby intentionally damages the assets of the person being cared for (abuse offence). However, strict requirements must be set for the proof of the internal facts, especially if the carer has not acted selfishly in the case of conditional intent.<\/p>\n

                If the required external approval is missing, the legal transaction is invalid. The adviser is only liable for damages to the opposing party: at best he can suffer economic disadvantages due to the invalidity of the contract or the nullity of the legal transaction. The counsellor is liable to pay damages to the cosignatory at least from c.i.c.<\/p>\n

                With regard to \u00a7 1908b, the above applies. A violation of the obligation to obtain an external permit has first of all the consequences from \u00a7\u00a7 1828 to 1831. This means that the contractual partner can set a deadline for the legal representative to notify the court of the court’s approval and thus make the pending transaction effective — after the fruitless expiry of the deadline (i.e. through mere silence on the part of the supervisor), the transaction becomes finally invalid.<\/p>\n

                If the intended legal transaction does not take place, either because the counsellor fails to notify the cosignatory of the approval or because the cosignatory revokes the approval under section 1830, the counsellor may also be liable for damages under section 1833 if the counsellor suffers a disadvantage as a result. It is difficult to imagine a criminal liability of the supervisor according to \u00a7 266 StGB<\/a> (German Criminal Code) solely because of the lack of an outside permit. It is mainly considered if the guardian deliberately makes or arranges a disposition of assets that is detrimental to the person being cared for (breach of trust) and therefore fails to obtain the necessary approval.<\/p>\n\n

                Excursus on \u00a7 266 StGB<\/a><\/strong><\/p>\n

                  \n
                1. \n

                  (e) the object and date of the authorisation<\/strong><\/h3>\n<\/li>\n<\/ol>\n

                  The guardianship court has to examine whether the facts submitted for approval require approval and are capable of being approved, i.e. whether they meet the legal requirements for disposals and obligations requiring approval. …<\/p>\n\n

                    \n
                  1. \n

                    f) What does the supervisor have to do if no authorisation is granted?<\/strong><\/h3>\n<\/li>\n<\/ol>\n

                    Practical case with solution note<\/p>\n\n

                      \n
                    1. \n

                      (g) Multiple licensing practices<\/strong><\/h3>\n<\/li>\n<\/ol>\n

                      As a rule, the judicial officer will discuss the licensing practice with the supervisor.<\/p>\n

                      In many cases, the courts refrain from approving each individual order or legal transaction. For example, it is often considered sufficient for the supervisor to have legal transactions requiring approval “approved” by telephone. This is permissible because, except in the cases of \u00a7 29 GBO<\/a>, approval does not have to be given in writing. The Reichsgericht even considered it possible to tacitly approve orders by unobjected acceptance of the annual accounts; some courts did indeed regard this as tacit approval. Only in the case of a necessary external permit, which is required by the opposing party, is a written permit to be given to the adviser as proof of its existence and presented by the adviser to the opposing party in due time. This is a necessary procedure in view of the amount of work involved in obtaining authorisation, given the workload of the guardianship courts.<\/p>\n\n

                        \n
                      1. \n

                        (h) Legal transactions not eligible for authorisation<\/strong><\/h3>\n<\/li>\n
                      2. \n

                        aa) Donations in the name of the person being cared for<\/strong><\/h3>\n<\/li>\n<\/ol>\n

                        Gifts which the guardian wishes to make from the assets of the person being cared for; they are null and void per se, even if the authorisation of the guardianship court has been obtained.<\/p>\n

                        The only exception is occasional gifts which are appropriate according to the circumstances of the person being cared for, \u00a7 1804 sentence 2, which applies, for example, to the case where outpatient nursing staff or home staff receive DM 100 as a cash gift at Christmas.<\/p>\n\n

                        Practical case with solution note<\/p>\n

                          \n
                        1. \n

                          bb) Other legal consequences of gifts<\/strong><\/h3>\n<\/li>\n<\/ol>\n

                          If a gift is disguised as a transaction against payment, the following shall apply to it pursuant to \u00a7 117, Sub-Clause 2 also \u00a7 1804. If, for example, the guardian acquires a piece of land as the legal representative of the guardian above the market value because he has not had this value determined, this constitutes a mixed donation that cannot be approved. When real estate assets are valued even by a publicly appointed and sworn appraiser, the appraisal must not be “blindly accepted”. The non-specialist must also check whether there are doubts about the objectivity of the expert opinion and whether it contains sufficient justification to make the result found appear plausible. This care can be expected from a reasonable person. If even the lay supervisor violates this obligation, he regularly acts negligently and must compensate the damage according to \u00a7 1833 step by step against assignment of the enrichment claims against the seller. However, the caregiver’s standard of care should be based on those of the circles of life to which the caregiver belongs.<\/p>\n

                          Because of \u00a7 254 paragraph. 2, the contributory negligence of the guardian is in principle to be attributed to the person being cared for, even if the judicial officer is called upon in accordance with \u00a7 839. However, if the guardian was not able to represent the person in question, e.g. according to \u00a7 1804 sentence 1, and the legal transaction was therefore not eligible for approval at all, the judicial officer nevertheless<\/p>\n

                          the contributory negligence of the carer cannot be credited and the state is liable according to \u00a7 839 in connection with Art. 34 GG<\/a> for the damage of the cared for person because of the approval by the judicial officer.<\/p>\n\n

                          Nothing else applies to the sale below value of objects of the ward. This is because the guardian always has to check for himself whether the transaction is still economically advantageous for the person being cared for and whether the actual documents that were available to the guardianship court at the time of approval are correct. With regard to \u00a7 266 StGB<\/a>, however, strict requirements must be set for the proof of the internal facts, especially if the supervisor has not acted selfishly in case of conditional intent.<\/p>\n\n

                            \n
                          1. \n

                            (i) Other cases<\/strong><\/h3>\n<\/li>\n<\/ol>\n

                            Furthermore, all transactions where the supervisor cannot represent the person being looked after are not subject to authorisation. This subheading covers legal transactions of a highly personal nature:<\/p>\n

                            – \u00a7 1311 sentence 1: Conclusion of marriage, also the reservation of consent cannot extend to declarations directed to the entering into marriage, \u00a7 1903 subs. 2.<\/p>\n

                            – \u00a7\u00a7 2064, 2274: Establishment of a will or other testamentary disposition, also the – reservation of consent cannot extend to dispositions on account of death, \u00a7 1903 para. 2;<\/p>\n

                            – Section 1516: Consent to a testamentary disposition of the spouse to exclude a joint descendant from continued community of property or deterioration of his or her position;<\/p>\n

                            – \u00a7\u00a7 1747, 1749, 1750 para. 3: Consent to the adoption of the child by the parents or the spouse<\/p>\n

                            – Section 1762 paragraph 1 Sentences 3 and 4: Application by a parent for cancellation of the acceptance relationship due to invalidity of his or her consent;<\/p>\n

                            – Section 2090, paragraph. 2: Cancellation of a contract of inheritance by the testator, but if the other part is under guardianship and if the cancellation of the contract of inheritance is covered by the scope of duties of the guardian, the approval of the guardianship court is required, \u00a7 2090 para. 3 sentence 1;<\/p>\n

                            – Section 2296 paragraph. 1: Withdrawal from the inheritance contract.<\/p>\n

                            <\/strong><\/p>\n

                              \n
                            1. \n

                              j) Prohibited representation by the legal representative<\/strong><\/h3>\n<\/li>\n<\/ol>\n

                              Furthermore, the guardian cannot represent the person being cared for in the following cases<\/p>\n

                              – where business is not part of his remit at all;<\/p>\n

                              – which fall under the prohibition of self-dealing pursuant to Section 181;<\/p>\n

                              – of transactions between the spouse or relative in the straight line of the caregiver and the person being cared for (Section 1795(1)(1))<\/p>\n

                              – of legal transactions aimed at disposing of claims of the person being cared for against the carer secured by real or personal security (\u00a7 1795 par. 1 no. 2);<\/p>\n

                              – representation in such cases (Paragraph 1795(1)(3) or, in the event of an extended interpretation of Paragraph 181).<\/p>\n\n

                              Case study: …<\/p>\n

                              III. The individual approval facts<\/strong><\/p>\n

                                \n
                              1. Subject to approval at the regular<\/strong><\/li>\n
                              2. The account block of \u00a7 1809 BGB<\/a><\/strong><\/li>\n
                              3. Subject to approval in the case of other types of investment, \u00a7 1811 BGB<\/a><\/strong><\/li>\n
                              4. The dispositions subject to approval of \u00a7 1812 BGB<\/a><\/strong><\/li>\n
                              5. The exceptions of \u00a7 1813 BGB<\/a><\/strong><\/li>\n<\/ol>\n\n

                                Dispositions and obligations entered into for this purpose within the meaning of \u00a7 1812 are not subject to approval if the object of the performance does not consist of money or securities, para. 1 No. 1 If the person in care is also obliged to provide recurring services under the contract, \u00a7 1907 subsection 1 shall apply. 3.<\/p>\n

                                If the object of the performance is currently money, Abs. 1 No. 1 does not, even if the original object was not directed at money and only later turned into such<\/p>\n

                                has transformed. Likewise, if instead of money another object is accepted in lieu of performance or in the case of an electoral debt, because the performance owed is directed towards money and a novation or exercise of an electoral right constitutes a disposal of the performance owed.<\/p>\n

                                According to this, the guardian can dispose of all the claims of the person in question that are not related to money, such as<\/p>\n

                                – from a community or company relationship,<\/p>\n

                                – transfer of property or transfer of rights, in particular those arising from the<\/p>\n

                                object of purchase or the work performance,<\/p>\n

                                – on surrender of property.<\/p>\n\n

                                If the claim does not amount to more than 3,000 euros, the guardian can accept the money without approval, par. 1 No. 2 Thus, if, for example, a purchase price claim amounts to 10,000 euros, the guardian requires the guardianship court’s approval to accept the money, even if the debtor only wants to make a down payment of 2,000 euros, since, according to the clear wording, it is the amount of the claim that matters.<\/p>\n

                                If it is a claim against a financial institution with which money was blocked in accordance with \u00a7 1807 no. 5, \u00a7 1809, the exemption of \u00a7 1813 paragraph shall apply. 1 No. 2 not, Abs. 2 sentence 1.<\/p>\n

                                Interest, costs and other ancillary benefits shall not be taken into account when calculating the amount of the claim, Section 1813 (1). One number five.<\/p>\n\n

                                  \n
                                1. The account holder’s claim against the financial institution<\/strong><\/li>\n<\/ol>\n

                                  Excursus: The current account<\/strong><\/p>\n

                                  Bottom line:<\/strong><\/h3>\n

                                  Summarizing the above considerations, the supervisor can dispose of claims and rights to performance without requiring approval and can conclude the necessary contracts:<\/p>\n

                                  – Claims arising from a corporate or community relationship, insofar as not directed at money and insofar as directed at money, up to EUR 3,000;<\/p>\n

                                  – Rent receivables, since uses;<\/p>\n

                                  – Pension entitlements, since benefits;<\/p>\n

                                  – Compensation and indemnification payments up to 3,000 Euro, in the cases of \u00a7 1813 para. 1 No. 5 in unlimited amount;<\/p>\n

                                  – Insurance benefits up to 3,000 euros;<\/p>\n

                                  – Claims from purchase contracts, if not directed at money, and if directed at money, up to 3,000 Euro;<\/p>\n

                                  – Claims for transfer of property, since not directed to money;<\/p>\n

                                  – claims for transfer of rights, as far as not directed to money and as far as<\/p>\n

                                  Money directed, up to 3,000 euros;<\/p>\n

                                  – Withdrawals from the unblocked savings account or transfers from the current account opened by the custodian himself\/herself for the purpose of holding money or with the approval of the custodian pursuant to Section 1811 in unlimited amounts (Section 1813 par. 1 no. 3, par. 2), this also includes the approval of payment to a third party;<\/p>\n

                                  – Closure of the unblocked savings account or current account opened by the guardian himself\/herself for the purpose of providing money or with permission according to \u00a7 1811, with credit balances in unlimited amounts (\u00a7 1813 par. 1 no. 3, par. 2); if the guardian can already withdraw everything, he\/she should also be able to close the account;<\/p>\n

                                  – Withdrawals from unblocked savings accounts or transfers from current accounts up to EUR 3,000 (Section 1813(1)(2));<\/p>\n

                                  – Approval of payment to a third party by the supervisor up to 3,000 euros, because this is the<\/p>\n

                                  performance to the carer;<\/p>\n

                                  – Closure of a savings account or current account not opened by the guardian with credit balances of up to EUR 3,000, although this also constitutes a disposal of benefits within the meaning of \u00a7 675 from the current account agreement, but these are not directed at money (1813(1)(1)), termination of the current account agreement is not associated with disadvantages;<\/p>\n

                                  – Cancellations of monetary claims up to 3,000 euros;<\/p>\n

                                  – Approval of a third party’s decision, which – if it were made by the supervisor – would not require approval;<\/p>\n

                                  – Assertion of conversion or reduction, if not directed at money and if directed at money up to 3,000 Euro,<\/p>\n

                                  – Declaration of withdrawal, if not directed at money and if directed at money, up to 3,000 Euro;<\/p>\n

                                  – Remission of a claim directed to money up to 3,000 euros;<\/p>\n

                                  – negative acknowledgement of debt up to 3,000 euros;<\/p>\n

                                  – Assignment of a claim for money up to 3,000 Euro;<\/p>\n

                                  – Pledge of a right directed to money (section 1275) or a claim directed to money (section 1279) up to 3,000 Euro;<\/p>\n

                                  – Acceptance of a compulsorily collected cash benefit up to 3,000 euros;<\/p>\n

                                  – Set-off with a claim of the person being cared for up to 3,000 euros;<\/p>\n

                                  – Contestation of a declaration of intent resulting in confiscation or refund up to 3,000 euros,<\/p>\n\n

                                  Exception: \u00a7 1813 paragraph 1 no. 3.<\/p>\n

                                  – In summary, it should be noted that the approval of the guardianship court is required under Section 1812 if the guardian<\/p>\n

                                  – via a claim<\/p>\n

                                  – or any other right by virtue of which the person concerned may claim a benefit,<\/p>\n

                                  – or wishes to dispose of a security<\/p>\n

                                  – or wishes to oblige the person being cared for to make such an order,<\/p>\n

                                  unless..,<\/p>\n

                                  – the object of the performance owed is not money or securities,<\/p>\n

                                  – the claim does not exceed 3,000 euros and does not relate to blocked<\/p>\n

                                  invested money,<\/p>\n

                                  – the carer accepts money that he\/she has invested himself\/herself and that has not been invested regularly and has not been obstructed<\/p>\n

                                  – the claim is one of the uses of the assets of the person being cared for<\/p>\n

                                  – the claim is directed to additional services,<\/p>\n

                                  – then the supervisor can accept the service owed without requiring approval.<\/p>\n\n

                                  For example, if the caregiver buys a car for the person being cared for, he or she obliges the person being cared for to pay the purchase price and thus to have money available. However, this obligation to dispose of money is not an obligation to dispose of a claim of the person being cared for; this claim is due to the third party. The purchase is therefore not subject to approval. Also the acceptance of the car does not require a permit, because it is neither money nor securities. Practical case with solution note<\/p>\n\n

                                    \n
                                  1. The exemption according to \u00a7 1817 BGB<\/a><\/strong><\/li>\n
                                  2. The general authorization according to \u00a7 1825 BGB<\/a><\/strong><\/li>\n
                                  3. Property transactions requiring approval,\u00a7 1821 BGB<\/a><\/strong><\/li>\n<\/ol>\n\n

                                    The approval reservations of \u00a7\u00a7 1821, 1822 are not complete. Further approval reservations are contained in the following regulations, among others:<\/p>\n

                                    – Section 112 paragraph. 1 sentence 1, paragraph 2 (Authorization and its revocation for the operation of an acquisition transaction;<\/p>\n

                                    – Section 1411 paragraph. 1 sentence 3 paragraph 2 Sentence 3 (conclusion of a marriage contract);<\/p>\n

                                    – Section 1484 paragraph. 2 Sentence 2 (refusal to continue the community of property);<\/p>\n

                                    – Section 1491 paragraph. 3 (Waiver of a descendant’s share of the total property in case of continued community of property);<\/p>\n

                                    – Section 1492 paragraph. 3 (Dissolution of continued community of property by the surviving spouse);<\/p>\n

                                    – Section 1595, paragraph. 2 sentence 1, \u00a7 1597 challenge of the marriage;<\/p>\n

                                    – Section 1600d para. 1 Sentence 2, Section 1600k (1) 1 Sentence 2: Acknowledgement of paternity and its challenge;<\/p>\n

                                    – Section 1728 paragraph. 2: Application by the father for a declaration of marriage;<\/p>\n

                                    – Section 2275 paragraph 2 Sentence 2, Section 2282 (2) 2, \u00a7 2290 paragraph. 3: Conclusion of the inheritance contract as well as its rescission and cancellation;<\/p>\n

                                    – Section 2347, paragraph. One, two, second sentence, \u00a7 2351: renunciation of inheritance and its cancellation;<\/p>\n

                                    – Section 1517, paragraph. 2, \u00a7 2347: Waiver of shares by a descendant in case of continued community of property;<\/p>\n

                                    – Section 2351 sentence 3, section 2347: Waiver of testamentary benefits;<\/p>\n

                                    – Section 607 paragraph. 2 Clause 2 ZPO: Divorce petition or petition to annul marriage;<\/p>\n

                                    – Section 640b sentence 2 ZPO: Commencement of proceedings in matters of parenthood;<\/p>\n

                                    – Section 181 para. 2 Sentence 2 ZVG: Application for divisional auctioning.<\/p>\n\n

                                      \n
                                    1. The most important other transactions requiring approval, \u00a7 1822 BGB<\/a><\/strong><\/li>\n
                                    2. a) \u00a7 1822 No. 1 Obligation to dispose of the entire assets<\/strong><\/li>\n
                                    3. b) Section 1822 No. 2: Rejection of an inheritance or legacy<\/strong><\/li>\n<\/ol>\n

                                      Excursus: Limitation of the heirs’ liability<\/strong><\/p>\n

                                        \n
                                      1. c) Section 1822 No. 3: Acquisition or sale of an acquisition transaction against payment or<\/strong><\/li>\n<\/ol>\n

                                        Input of an on<\/strong><\/p>\n

                                        the operation of an acquisition-oriented company agreement<\/strong><\/p>\n

                                        Digression: \u00a7 1823<\/strong><\/p>\n

                                          \n
                                        1. (d) Section 1822 No 8<\/strong><\/li>\n
                                        2. e) \u00a7 1822 No. 10<\/strong><\/li>\n
                                        3. f) \u00a7 1822 No. 11<\/strong><\/li>\n<\/ol>\n

                                          The commissioning of third parties Waiver of the appointment of an authorized signatory for the GmbH<\/strong><\/p>\n

                                          of the person being cared for?<\/strong><\/p>\n

                                            \n
                                          1. \n

                                            Surrender of the rented apartment and conclusion of continuing obligations, \u00a7 1907 BGB<\/a><\/strong><\/h3>\n<\/li>\n<\/ol>\n

                                            Dr. Heinz Willer, Munich \/ Alexander Krafka, W\u00fcrzburg*<\/em><\/p>\n

                                            Special features of electronic register keeping<\/strong><\/p>\n

                                            For some time now, \u00a7 8 a HGB<\/a> has made it possible for the commercial register, including the associated directories, to be kept in computerised form as an automated file as an “EDP register”. Only recently have some state governments (Bavaria, Brandenburg, Hamburg, Hesse, North Rhine-Westphalia, Saxony and Saxony-Anhalt) made use of this possibility. The same applies to the other registers of legal entities (registers of cooperatives, associations and partnerships). The path to the electronic register was accompanied by a large number of legislative amendments, most recently the “Law on Electronic Registers and Judicial Costs for Telecommunications” (ERJuKoG) and the “Regulation to Facilitate Register Automation”.<\/p>\n

                                            In contrast to the pure change of media from the card index land register to the computerised land register, electronic register keeping entails substantial changes in content, the basic features of which must be known not only to the direct users but also to the inspectors. This article is also intended to make it easier for register courts, which currently only have a paper register, to access the computerised register. Some of the changes are already planned or possible for the paper registers in preparation for the conversion.<\/p>\n\n

                                            A comprehensive presentation of the changes will be included in the new edition of the Handbook of Register Law by Keidel\/Schmatz\/St\u00f6ber (authors of the new edition are the authors), which is planned for the second half of the year.<\/p>\n

                                            The key point of the changes is that information from the automatically maintained registers of legal entities must be provided in both chronological and up-to-date form (Section 64 (3) HRV, Section 32 (3) VRV). The chronological representation (“chronological expression”) contains, like the previous register sheet, all entries from the transfer (Section 52 HRV) to the EDP register in chronological order. In contrast, the current issue (“current printout”) only includes the latest status of the entries. Entries or parts of entries which are red or otherwise invalid, in particular those which merely explain or substantiate an entry, are not included here. This current version must be generated automatically from the chronological entries.<\/p>\n

                                            In order to meet this requirement, the following changes were introduced for the computerised register, which are described in more detail below:<\/p>\n

                                            – New column division (\u00a7\u00a7 61, 62 HRV);<\/p>\n

                                            – Register references — Entry of legal entities entered in a public register of companies, in each case with name\/company name, registered office and registry office at the respective place in the entry text, no longer in the comments column (Section 61 No. 7, Section 62 No. 8 HRV);<\/p>\n

                                            – Prohibition of partial reddening (\u00a7 58 para. 2 HRV) and<\/p>\n

                                            – Transitional texts — marking also of the repeating, explanatory or justifying entries (\u00a7 58 a HRV).<\/p>\n

                                            <\/strong><\/p>\n

                                              \n
                                            1. \n

                                              New column division in the EDP register<\/strong><\/h3>\n<\/li>\n<\/ol>\n

                                              The division of columns in the automated commercial register is based on the now revised provisions of Sections 61 and 62 HRV. The following special features should be emphasized:<\/p>\n

                                                \n
                                              1. \n

                                                Registered office and branch office<\/strong><\/h3>\n<\/li>\n<\/ol>\n

                                                In column 2b), the registered office and, if there are branches, the company name, place and registry of the branches as well as associated explanatory texts on the establishment, cancellation or amendment (Sections 61 No. 2, 62 No. 2 HRV) are to be entered.<\/p>\n

                                                  \n
                                                1. \n

                                                  Registration of the representation arrangements<\/strong><\/h3>\n<\/li>\n<\/ol>\n

                                                  In the representation columns 3 (a) and b) for HRA, PR and VR, or 4 (a) and (b) for HRB and GnR, the representation arrangements shall be entered. In each case the sub-column (a) to register the general, abstract rules on representation, as they result from the law or the memorandum or articles of association This also includes, for example, an exemption from the restrictions of \u00a7 181 BGB<\/a> (German Civil Code) granted by the articles of association or the articles of association for all legal corporate representatives or general restrictions on the power of representation for association board members in accordance with \u00a7 26 Para. 2 P. 2 BGB<\/a>.<\/p>\n

                                                  The sub-column b) contains the personal data (surname, first name, place of residence, date of birth or, in the case of registered legal entities, name\/company name, registered office or branch, registry office) and, if applicable, a specific<\/p>\n

                                                  power of representation of each designated representative. Thus, if a managing director has been granted exemption from the restrictions of \u00a7 181 of the German Civil Code by a resolution of the shareholders’ meeting on the basis of an enabling provision in the articles of association, this must be entered in sub-column b) under the name of the person concerned. This column also includes texts explaining changes, such as dismissal, a change in the power of representation or changes in the names of board members.<\/p>\n

                                                  Especially the reorganization of the representation column makes it clear that this is not only necessary with regard to the creation of the current printout, but that it also considerably enhances the clarity and user-friendliness of the Commercial Register in general.<\/p>\n

                                                  Otherwise, authorised signatories and the changes relating to them are also entered in a separate column for authorised signatories (column 5) in the case of cooperatives (\u00a7 26 no. 5 GenRegVO).<\/p>\n\n

                                                    \n
                                                  1. \n

                                                    Legal Relations column<\/strong><\/h3>\n<\/li>\n<\/ol>\n

                                                    …<\/p>\n

                                                      \n
                                                    1. \n

                                                      Remarks column<\/strong><\/h3>\n<\/li>\n<\/ol>\n

                                                      …<\/p>\n

                                                        \n
                                                      1. \n

                                                        References to other registries<\/strong><\/h3>\n<\/li>\n<\/ol>\n

                                                        Instead of the previously customary entry of a register office of a registered legal entity in the comments column, the new register rulings order the inclusion at the respective text passage (Sections 61 no. 7, 62 no. 8 HRV, Section 6 (4) VRV, Section 5 (3) PRV, Section 26 (8) GenRegVO).<\/p>\n

                                                        The reason for this is that a registered legal entity is only clearly identified by its company name, registered office and registry office. As the changes of company and domicile become more frequent in modern economic life, this unambiguousness is becoming increasingly important.<\/p>\n

                                                        The inclusion in the comments column, as practised so far, means that this important information does not participate to the necessary extent in the necessary publication, as the comments column is not made public. Even within a registration it is not sufficiently perceived as outsourced information. For the EDP register, the current handling would also lead to the loss of information when creating a current printout (Section 64 (3) p. 3 HRV), since the references to register offices, which in many cases are multiple, could not be assigned to a specific legal entity without a doubt.<\/p>\n

                                                        …<\/p>\n

                                                        III. prohibition of partial reddening<\/strong><\/h3>\n