2016: Decision making and legal capacity in dementia
Consent to research and clinical trials
The issue of protecting research subjects involved in pharmaceutical trials is addressed in a special paragraph in the Medicines Act. The following restrictions apply according to this law (Leenen et al., 1993):
- anybody participating in such research must have given informed consent;
- anybody who has been involuntarily committed cannot participate;
- only therapeutic research is possible in the case of incompetent people.
The restriction regarding therapeutic research is important for practically all areas of research in Germany. In fact, the main reason why Germany did not sign the Convention on Human Rights and Biomedicine (Council of Europe, 1997) was that it contains a clause which allows in certain circumstances for non-therapeutic research to be carried out on people lacking the capacity to consent, i.e. research which does not have the potential to produce results of direct benefit to the health of the person concerned.
The legal status of advance directives in Germany
Since 1.9.2009 advance directives have been legally recognised. The new law is integrated into Book 4 of the Civil Code, §§ 1901 a + b (Family Law, Section 3, Heading 2, Legal Guardianship). The new law recognises that advance directives reflect a citizen’s right to self-determination and are linked to the issue of consent to treatment. Therefore, it is possible for people to refuse or limit specific treatments in advance of their incapacity by means of advance directives.
An advance directive may in certain circumstances be considered as binding e.g. if there is no indication of a change of will related to the specific situation and if the instruction is based on sufficient medical information for the medical treatment proposed. In such cases, a decision that is clearly in favour of withdrawing treatment and is clearly the manifest desire of the patient must be complied with (Council of Europe, 2003).
Conditions surrounding the writing, validity and registering of an advance directive
An advance directive can only be written by an adult who has capacity and is not subject to external pressure. For example, writing an advance directive cannot be made a condition for concluding a contract. The advance directive must be in written form. It is assumed that a person has capacity but confirmation of this by a notary may be helpful. The advance directive should refer to specific treatment or situations and cannot include a request for something that is illegal, e.g. assisted suicide. Advice from a doctor is advisable but not necessary. There is no set procedure for registering advance directives and they are not limited to a set period of time.
What an advance directive can cover
An advance directive can cover medical investigations, treatment and/or medical interventions.
Obligation to comply with instructions contained in an advance directive
If a person has a guardian, the guardian has to check that the previously expressed wishes relate to the current situation and if so, to ensure that those wishes are respected. The doctor and the guardian have to discuss the wishes contained in the advance directive in order to come to a decision about treatment.
People who are close to the patient and other trusted persons should be heard provided that this would not result in considerable delay.
It is often difficult for doctors to determine whether instructions/wishes expressed in an advance directive correspond to the current situation. For some, it is also unclear whether failure to initiate or end life-supporting treatment/measures is permitted or, on the contrary, fulfils the criteria for the criminal offence of “murder at the request of the victim” (Mathy and Godschalk, in Alzheimer Europe, 2006). The new law does not seem to offer any clarity on this issue.
Amending, renewing and cancelling advance directives
An advance directive can be withdrawn at any time. It is not stated that a person has to have full legal capacity to do this.
Previously expressed wishes in the absence of valid advance directive
Paragraph 1901a BGB does, however, outline the obligation of guardians to take into account previously wishes in cases where the person lacking capacity did not make an advance directive or made one but it does not apply to the current situation. In doing so, guardians must base their appraisal of the person’s wishes on concrete evidence such as wishes which were previously expressed either in writing or orally, ethical or religious convictions and known personal values. This must be done irrespective of the stage or type of illness that the person has.
Issues surrounding the loss of legal capacity
The process of declaring a person legally incompetent as part of the guardianship process has been abolished. However, it is still possible to make such a declaration if really necessary. In English there is only one word, whereas in German there are two and the significance of the terms used is important. In an information brochure on the law governing guardianship (Bürgerliches Gesetzbuch/BGB) produced by the Ministry of Justice (Bundesministerium der Justiz, 1996), it is stated that a person can no longer be “entmündigt”. This word means incapacitated or “declared incapable of managing one’s own affairs”. This term has connotations of the loss of fundamental and basic rights, which are acquired with adulthood. The term “geschäftsunfähig” which is used in §104 of the Civil Code simply means “incompetent to carry out business” and therefore has fewer derogatory connotations. Please see the section on contractual capacity for more details.
Proxy decision making
The Betreuungsgesetz (“Guardianship Law”) is part of the Bürgerliches Gesetzbuch (BGB) (i.e. the German Civil Code).
The Guardianship Law, which came into force in January 1992, was the result of the Act to Reform the Law Concerning Guardianship and Curatorship for Adult Persons from12 September 1990. It is generally considered to be a vast improvement on the previous provisions for guardianship and care of the frail.
Prior to the implementation of the new system of guardianship, a person could be declared legally incompetent and this would lead to an automatic loss of the right to vote, marry, write a will, carry out a business and even legitimately purchase clothes or food.
The process of automatically declaring a person legally incompetent as part of the process of guardianship has been abolished in favour of a more flexible approach to guardianship based on the particular needs and abilities of the person under guardianship and is more geared towards self-determination.
Conditions for appointment of a guardian
According to §1896 of the Civil Code, a guardian can be appointed by the Guardianship Court if due to a psychiatric illness or mental impediment an adult is wholly or partly unable to look after his/her own affairs. A guardian is only appointed for tasks for which guardianship is necessary. If the person’s affairs could be managed equally satisfactorily in a way other than by appointment of a legal representative, this should be done. Similarly, if a person merely needs help with household tasks or to leave the house, this should be arranged, without this necessitating the appointment of a legal representative.
How guardianship is arranged
The judge in charge of the guardianship case must obtain a medical report from a neurologist or psychiatrist and may also request a report on the person’s social environment. S/he then visits the person in their familiar environment, which is usually at home, and listens to their views. The judge also interviews relatives and others who are closely linked to the person in order to find out their views about the possible guardianship measure. The procedure for appointing a guardian is usually fairly lengthy but it can be speeded up in case of emergency.
Who can be a guardian
If guardianship is considered necessary, the Guardianship Court appoints a person who is deemed capable of suitably looking after the person and his/her affairs. If the person to be placed under guardianship proposes a particular person, the Court must respect this decision unless it is judged to run counter to his/her personal wellbeing. A proposal not to appoint a certain person should also be taken into account by the Court. If anyone possesses a document in which the wishes of a person are expressed (with regard to the choice of guardian should the situation ever arise), s/he must hand it over to the Guardianship Court without delay on hearing that proceedings are underway or that a guardian has been appointed. A doctor can apply to the Guardianship Court only if the patient gives permission, unless the doctor is of the opinion that the patient could harm him/herself without a guardian.
If the person, for whom guardianship is being arranged, does not propose anybody, the Court will usually take into consideration his/her spouse or children, bearing in mind the possible conflict of interests that this may entail. A guardian must declare that s/he is willing to be a guardian before taking up the duty. Once the Court has decided on a person to be the guardian, this person is obliged to take on the guardianship duties provided that this can be expected with regard to his/her family, professional and other circumstances.
The Court can decide to appoint more than one guardian if this would mean that the person’s affairs could be managed more efficiently this way. The duties and responsibilities of each guardian can be specified. Moreover, the Court can also appoint several guardians so that only one looks after the affairs of the person, but another can take over if the first is prevented from doing so or transfers the duty to him/her.
If guardianship cannot be ensured by the appointment of one or more individuals, the Court can appoint an association or, failing this, an authority. An association can then transfer guardianship duties to individuals, bearing in mind any proposals made by the person under guardianship.
The duties and responsibilities of guardians
The duties of the guardian are stipulated in §1901 (Civil Code):
“The carer will look after the affairs of the person cared for in the way his/her welfare requires. The welfare of the person cared for also includes the possibility of arranging his/her life within the scope of his/her capabilities in accordance with his/her own wishes and ideas.”
The guardian will comply with the wishes of the ward if this does not conflict with the latter’s welfare and if it can be expected of the guardian. This also applies to desires that the ward expressed before the guardian was appointed unless s/he demonstrably does not wish to keep to this desire. The guardian will discuss important matters with the ward before discharging them, insofar as it does not conflict with his/her welfare.
Amongst his/her duties, the guardian will ensure that every opportunity is used to remove or improve the condition or impediment of the ward, to prevent its deterioration or to mitigate its consequences.
The guardian will notify the Guardianship Court of any circumstances of which s/he is aware that will facilitate suspension of guardianship. The same applies to circumstances that facilitate a restriction of the extent of his/her range of duties or require their extension, the appointment of an additional guardian or a limitation of previously granted authorisation. It is the duty of the guardian to represent the ward at law and otherwise.
How the financial affairs of the person under guardianship are handled?
If the guardian has responsibility for handling the ward’s financial affairs, s/he must provide the Court with a complete list of the ward’s finances and assets. The Court decides when and how often this should be done. If the guardians are relatives, they only need to provide proof of the financial situation when the Court demands it, but at least every two years. The ward is entitled to demand to see this list whenever s/he wants to.
Money should be put into an account which can only be accessed with the authorisation of the Guardianship Court. Financial investments can only be made with the approval of the Court. If there is a current account, the guardian can withdraw money without authorisation from the Guardianship Court provided that there is not more than a specified amount in the account (EUR 3,000). If the guardian is the ward’s spouse or a relative, withdrawals can be made without authorisation for larger amounts.
Numerous authorisations are necessary for the purchase and sale of a piece of ground belonging to the ward or for taking out mortgages. If a contract is made between the guardian and the ward, the guardian cannot act on the ward’s behalf with regard to this contract. In such cases, the guardian must contact the Court so that an additional guardian can be appointed to deal with this matter.
Measures to protect the ward from misuse of power
The guardian must submit a statement on the financial state of affairs of the ward. This should be accompanied by a report on the personal situation of the ward, e.g. how frequent the guardian has contact with him/her, his/her place of residence, his/her state of health, whether it is likely that guardianship will continue to be necessary and whether the extent of the guardianship should be reduced or extended.
The guardian can only act within the area of competence agreed by the Guardianship Court. If s/he feels that the ward needs assistance in other areas, s/he must inform the Court and not take care of the task him/herself. If the guardian is unsure whether something lies within his/her area of competence, s/he must contact the Guardianship Court.
In rare cases, if the ward seems to be a danger to him/herself or assets, the Guardianship Court can order a “reservation of consent”. This means that s/he can only make a declaration of will with the consent of his/her guardian. This protective measure is similar to measures designed to protect minors when carrying out business transactions. There is a clause in the Civil Code (§1907), which states that the guardian must obtain authorisation before terminating a rental agreement for the ward’s accommodation. This measure is designed to protect the ward from the adverse effects of losing a trusted environment and circle of acquaintances.
Compensation and liability of guardians
A normal guardianship case for a person living in a flat with no money would cost EUR 1,848. Guardians who are relatives or volunteers are entitled to a payment of EUR 323 per year to cover various costs such as transportation and telephone calls. If the ward has more than EUR 2,600, s/he must cover this cost. If the ward has more than EUR 2,600, s/he must cover this cost; otherwise it is paid by the State (International Guardianship Network, 2008). Guardians are responsible for any loss or damage suffered by the ward due to their actions but some communes provide volunteer guardians with an insurance against this (Marburger Verein für Selbstbestimmung und Betreuung, 2008).
Duration of guardianship
The duration of the guardianship is set by the Court and cannot be longer than seven years.
The right to appeal
If a ward, who has not lost his/her legal competence, disagrees with a decision made by a guardian, s/he can contact the Courts in order to appeal against the decision.
Powers of attorney
A durable power of attorney (known as Vorsorgevollmacht) is a power of attorney which only becomes valid when the person who wrote it is no longer able to handle his/ her finances and other matters. The person who writes the durable power of attorney can limit the powers of the future attorney to certain matters. People holding a power of attorney are not routinely controlled.
Capacity In Specific Domains
A person has the right to contract a marriage provided that s/he has not been declared legally incompetent in the sense of “geschäftsunfähig” (Bundesministerium der Justiz, 1996).
According to article 12 Bundeswahlgesetz (Federal Election Law), every person who has reached the age of 18 has the right to vote.
A person who is under guardianship retains the right to vote unless, as stated in the Federal Electoral Law of 1993, s/he is under complete guardianship in all matters (i.e. a guardian has been appointed to attend to all his/her affairs).
People who are currently detained in a psychiatric hospital under article 63 of the Penal Code also lose the right to vote according to the Federal Election Law of 1993.
The legal validity of business transactions is determined by the legal capacity of the people making it. According to paragraph 104 of the Civil Code, a person is deemed legally incompetent (geschäftsunfähig) if s/he is incapable of free determination of his/her will due to a pathological disturbance of mental activity and if this condition, by its nature, is not temporary.
There is no system of relative incompetence. However, a person may be partially incompetent, which means that s/he may be able to carry out transactions or make decisions in a certain domain but not in others. A guardian can carry out a transaction on behalf of a ward, provided that s/he has the authority to act in this domain. If a person who has been declared legally incompetent makes a declaration of will, it can be declared invalid (§105 Abs.1 BGB/Civil Code). This also applies if the person who made it was in a state of unconsciousness or temporary disturbance of the mind.
A person cannot make a will if due to a pathological disturbance of his/her mind, mental deficiency or a disturbance of consciousness, s/he is unable to understand the meaning of the will and act accordingly (§2229 Abs. 4 BGB).
Making a will is therefore linked to the concept of mental incapacity. As such, it is not affected by the mere naming of a guardian or by the “reservation of consent”. Anybody who wants to have a will declared invalid must prove that the person who made it was incapable at the time of writing.
If a person makes a will with the help of a lawyer or in an emergency situation with the help of other people, the lawyer or those people must assess the testator’s mental capacity. Without deciding whether s/he has testamentary capacity, they must simply record any indications they detect of a possible lack of such capacity (§28 Beurkungsgesetz) (Lipp, 2008).
As with a criminal offence, a person cannot be held responsible for damage to another person or his/her property if s/he (the perpetrator) is suffering from incapacity due to mental disturbance or diminished responsibility. This is covered by §827 of the Civil Code which states that a person is not responsible for any damage s/he causes if s/he was in a state of unconsciousness or suffering from a pathological condition of disturbance of mental activity that prevents the exercise of free will at the time the damage was caused.
Family members are not responsible either in that each person can only be held responsible for his/her own actions. Nevertheless, the injured party may attempt to obtain compensation from the head of the household for failure to prevent the person from causing damage. This is governed by §832 of the Civil Code which states that, if the damage was caused by a minor or a major who on account of his/her mental or physical condition was under supervision, the person responsible for his/her supervision is obliged to compensate the third party. However, the obligation to compensate for damage shall not arise if s/he has sufficiently carried out the task of supervision or if the damage would have occurred even if proper supervision had been carried out.
According to the Penal Code, a person who commits a crime may be deemed to have acted without criminal responsibility due to incapacity or may be given a lighter sentence due to a state of diminished responsibility. The relevant paragraphs of the Penal Code are as follows:
“§ 20 Incapacity due to mental disturbance - A person who, when s/he perpetrates an act, is unable, on account of mental disturbance, of farreaching disturbance of consciousness, of mental deficiency or a serious mental abnormality of some other kind, to understand the wrongfulness of the act or to behave in accordance with this understanding, acts without criminal responsibility.
“§ 21 Diminished responsibility - If the capacity of the perpetrator to understand the wrongfulness of the act or to behave in accordance with this understanding is considerably diminished for one of the reasons described in § 20, the punishment can be mitigated in accordance with § 49 (1).”
Paragraph 63 of the Penal Code states that if a person who has committed an illegal act is suffering from mental incapacity or diminished responsibility, s/he may be committed to a psychiatric hospital or clinic. This could occur if following an overall assessment, the Court establishes that s/he would be likely to commit a serious illegal act due to his/her condition, which would render him/her a danger to the public.
Last Updated: Wednesday 08 February 2017