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BGH: Supervisor must be able to use cash withdrawals
(jur). If a caregiver withdraws 19,355 euros from the account of a dementia patient to be cared for without precise proof of use, this is an indication of a lack of suitability for care. The Federal Supreme Court (BGH) decided in a decision published in Karlsruhe on Monday, August 22, 2016 (Az .: XII ZB 616/15) because of the presumed lack of honesty that the supervisory court can then appoint a professional adviser.
Specifically, it was about a dementia patient born in 1935 from the Kempten area of the Allgäu. In October 2014, the care facility in which the man was at the time suggested childcare. In the course of the proceedings, the complainant submitted a notarial care order, according to which the dementia patient chose her on December 12, 2014 as a caregiver for, among other things, asset management.
However, both the district court and the regional court in Kempten appointed a professional adviser instead. Reason: On the one hand, it can be assumed that the person concerned was no longer able to make a conscious decision about the power of attorney, since he had been suffering from moderate dementia since at least November 2013.
There are also concerns about the fairness of the plenipotentiaries. The woman made numerous cash withdrawals from the dementia patient's accounts in the period from January to March 2015, without being able to prove the exact use of the money. A total of 19,355 euros were withdrawn.
In its decision of August 3, 2016, the BGH now confirmed the judicial appointment of the professional supervisor. If a person of legal age suggests a supervisor, this must in principle be complied with if it does not run counter to his well-being. It is sufficient that the person concerned wishes a specific person as a supervisor. As a rule, there must be no legal capacity or natural insight for the person being cared for.
However, there are meaningful findings that the supervisor is unsuitable and that he acts against the welfare of the person concerned, a professional supervisor should be appointed, the Karlsruhe judges emphasized. This is the case here. The authorized representative justified the cash withdrawals with the fact that in the interest of the dementia patient she needed a cash payment of 14,500 euros for a necessary construction project.
However, this alone cannot prove the cash withdrawal of over 19,000 euros. And even so far, the authorized representative has not provided sufficient evidence of the use of the 14,500 euros. The district court had therefore rightly appointed a professional adviser because of doubts about the honesty of the authorized representatives. fle / mwo