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Communication problems of a disabled person in the care process are not yet a reason to refrain from the personal judicial hearing. Because even if the person concerned cannot say anything meaningful about the matter, the judge can still draw conclusions about the will of the person to be cared for by non-verbal signs, the Federal Court of Justice (BGH) decided in a decision published on October 27, 2016 (file number: XII Eg 269/11).
Specifically, it was about a 26-year-old handicapped person from the Constance area who had suffered an early childhood brain disorder. He is paralyzed on the arms and legs and severely impaired in speech and hearing. In January 2009, the district court appointed a professional supervisor. The parents were not considered as caregivers because of their divorce and the associated tensions.
In January 2016, the district court extended the care without hearing the 26-year-old. Because of the "limited communication options", no gain in knowledge is to be expected, the reasoning says. The district court confirmed the decision. The person concerned is not in a position to form free wills, so that a hearing is not necessary.
However, the father considered this to be illegal and called the BGH.
He now agreed with the father in his decision of September 28, 2016. When extending the care, the judicial hearing is generally mandatory. The judge's hearing can only be dispensed with if the person concerned is not able to express anything “or in any case is unable to express anything related to the matter”. This is the case with unconscious people, for example.
However, a hearing is not already unnecessary because the disabled person "cannot say anything meaningful about the matter". So there can also be a non-verbal ability to communicate, in which the person concerned expresses his / her will. The judge could then draw conclusions from it. In this case, communication with technical aids was fundamentally possible, so that the hearing should not have been omitted, the BGH decided. fle / mwo