Limitation of the client's capacity to act
In most cases, the appointment of a guardian is sufficient to safeguard the interests of a person in need of guardianship. A person's competency can be restricted mainly when they actively seek to harm their financial position, for example by donating their property or by taking out debt, because of their illness. In other words, merely appointing a guardian in these situations is not enough to safeguard their interests.
When can the person's competency be restricted?
Competency is always limited in the least possible way.
1) The client and the guardian work together
The District Court may order that:
- the person may perform certain acts, such as borrowing, only with the assistance and consent of their guardian or
- the person may only make decisions concerning their assigned property only with the assistance and consent of their guardian.
These restrictions can effectively ensure, for example, that the person remains in ownership of property that is essential for their livelihood such as a residence or a farm.
2) Only a guardian can act
If the restriction described above is not appropriate or sufficient for the protection of the person, the District Court may order that:
- the person is not competent to perform certain acts or
- the person does not have the right to make decisions concerning their particular property.
Generally, such a restriction will also terminate a person’s right to take out credit. After the order has been issued, only the guardian can perform the actions specified in the order and manage the property specified in it on behalf of their client.
If the duties of a guardian of a person with limited competency do not include matters on which the person is no longer able to decide due to the restriction, the District Court will at the same time appoint a guardian for them to perform these duties.
How can the person's competency be restricted?
The competency of a person may be restricted either in connection with the appointment of a guardian or separately when a guardian has already been appointed for them.
A decision on restricting a minor's competency may be made after they have reached the age of 17. However, the restriction does not begin until they reach the age of 18.
How long is the restriction valid?
The restriction to competence is valid until further notice or for the period specified in the decision. The restriction or its period of validity may be amended due to changed circumstances. The restriction must be removed if it is no longer necessary.
3) As a last resort, the District Court may declare a person incapacitated
The District Court may, as a last resort and extreme measure, declare a person to be incompetent, but only if the restriction of their capacity is not sufficient to protect them. An incompetent person has the right to take only minor actions such as deciding on the use of the funds provided to them by the guardian. However, an incompetent person cannot perform such acts as opening a telephone subscription or selling a car that they own. Such financial and property matters of the incompetent person that are of more than minor importance are handled by their guardian.
However, an incompetent person can always decide on matters concerning them if they understand the significance of the matter: for example, they can apply for a passport or submit a notification of a change of name. If an incompetent person does not understand the significance of a matter concerning them, the guardian may decide on the matter on their client’s behalf, if so decided on by the District Court. Even so, the guardian cannot ever decide matters on behalf of their client, in matters where the personal nature of the decision is emphasised. Thus, a guardian cannot, for example, enter into a marriage, acknowledge paternity, prepare a will, grant power of attorney or enter into a prenuptial agreement on behalf of their client.