Model Approaches to Elder Abuse
Prevention and Intervention in Legal
Guardianship Cases
World Congress on
Adult Guardianship
May 29, 2014
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Introduction
Abuse in financial affairs (Financial
Management/Guardian of the Estate) of
wards/clients
Methods: Qualitative- and quantitative-empirical
research methods
What sorts of crime cases were committed by
Public Guardians etc.?
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Introduction
Results
Numerous criminal offences (e.g.: fraud, theft,
misappropriation) are committed on
wards/clients by legal guardians etc.
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Introduction
Failures of transparency, fraud and corruption
in the area of nursing and care of the elderly
and people with disabilities
These legal facts are confirmed by
Transparency International Germany e.V.
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Transparency International
Germany/Requests
in the area of juridical care:
1. Supervision and control of juridical care is
significantly strengthen, but also to use
additional human resources in the area of
juridical care.
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Transparency International
Germany/Requests
in the area of juridical care:
2. In all German court districts, there should
be installed registries for professional
guardian and national databases for
comparison of number of cases of compliant
and violations by professional guardians and
for interaction between
all courts of Germany
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Transparency International
Germany/Requests
in the area of juridical care:
3. In the case of court order and juridical
investigation of the assets of wards, these main
tasks should be separated from the serial
juridical care and implemented by the ongoing
support management of juridical care. The four
eyes principle of guardians and juridical officers
should strictly be applied and
create a precise documentation
through the process of identification. University Hamburg
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
Transparency International
Germany/Requests
in the area of juridical care:
4. Guardians should be obliged to the
Commitment Law. Therefore the public official
would be subjected to the strict criminal rules
of giving/taking unfair advantages.
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Questions
Is „the system of the German custodianship“
an effective tool?
Do we need to resolve the abuse of financial
affairs by custodianship courts in Germany?
Does the German custodianship need a higher
compatibility with Art. 12 UN Convention on
the Rights of Persons
with Disabilities?
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Questions
Should the German legislative create a new
balanced and fair system of support in the
social fields?
Could lawyers and other court appointed
custodians benefit from training in the social
fields?
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Questions
Should it be required that the officials of the
custodianship court were trained further in
social and medical fields?
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Contemplation
Various associations and experts are actively
involved in these subjects in Germany.
Some of them are arguing that their own ideas
like a form of „Supported Decision-Making“
required by the UN Convention were
implemented.
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Proposals for discussion
Agreement made by persons without power of
representation (ohne Vertretungsmacht)
Agreement made by persons with separate
power of representation by custodianship
court (mit gesonderter Ermächtigung des
Gerichtes dann gesetzliche Vertretungsmacht)
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Proposals for discussion
Graded assistance/guardianship according to
Swiss model (abgestufte Beistandschaften
nach Schweizer Modell)
Private mandate/authorization (private
Mandatierungen)
Only social legal assistance according to British
Columbia model – Power of Attorney
(nur sozialrechtliche Unterstützung)
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Proposals for discussion
The German organization of Guardianship
Auditors proposes a model „Agreement made
by person without power of representation“
(ohne Vertretungsmacht):
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Proposals for discussion
The so-called „Expression of Intention“
conveys solely the „Declaration of will“ of
another without this person himself
authorized to represent the other person. The
condition is: the will, in the event of a legal
„Declaration“ for legal capacity or legal „Right
to Act“, be of expected or required as
authorized legal correctness
and accuracy.
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Proposals for discussion
The „procedural status“ means that someone
asserts the rights by law of another under his
own name. He is not a „representative“, but
the appropriate rights by law have been
transferred. This transfer can be done by a
contract or an order or by a judicial decision
or legislation. The transfer could also be
designed without restriction
of the rights of the affected person.
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Proposals for discussion
That is now the case in that it lies with the
responsible proceeding assistant who legally,
rightfully, can assert in his own name all rights
of the affected person in the procedure
without disregarding the rights of the affected
person. To the relationship of the parties
concerned, the legal assistance has no legal
power.
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Proposals for discussion
Vice versa: Agreement made by person with
separate power of representation by
custodianship court (mit gesonderter
Ermächtigung des Gerichtes dann gesetzliche
Vertretungsmacht).
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Questionnaire responses
Power of attorney (B.C./Germany)
Hamburg:
8 districts of
probate courts
40.00
30.00
per cent
20.00
10.00
Guardians
Jud. Officer
0.00
absolutly
rather yes
yes
Judges
rather no
absolutely
no
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Questionnaire responses
Power of attorney (B.C./Germany)
70
60
Niedersachsen:
66 districts of
probate courts
50
40
per cent
30
Guardians
20
10
Jud. Officer
0
absolutly
yes
Judges
rather yes
rather no
absolutely
no
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Questionnaire responses
Schleswig-Holstein:
Power of attorney (B.C./Germany)
26 districts of
probate courts
50
45
40
35
30
25
20
15
per cent
10
Guardians
5
Jud. Officer
0
absolutly yes
rather yes
April 2014, 10:15 am - 11.15 am
Judges
rather no
absolutely no
Gabriela Kluge, LLM, Medical Student
University Hamburg
Developing an approach
The German custodianship law is with its few
critical elements, such as electoral-law
suspension and restriction consent or
approval, in line with the convention
(requirement).
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Developing an approach
The practice of custodianship law
unfortunately is lagging behind in many areas
of the law, also behind the UN Convention on
the Rights of Persons with Disabilities. These
issues are in urgent need of handling through
regular training of judges, juridical officers and
also the guardianship auditor.
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Developing an approach
German law lacks a low-key-system (fehlt ein
niederschwelliges System) for support for
people with disabilities in exercising their
capacity to act outside the legal care or within
through flexible rules.
This support system that is being demanded
from various segments, must be adjusted to
the obligatory safety requirements
of the convention (law).
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Thank you
for your Attention!
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Literature/Literatur:
Transparenzmängel, Betrug und Korruption im
Bereich der Pflege und Betreuung
Schwachstellenanalyse von Transparency
Deutschland
Authors: Barbara Stolterfoht, Dr. Anke Martiny
1. Auflage 2013, Berlin, Germany
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Literature/Literatur:
„Das Representation Agreement in British Columbia
(Canada) – ein Modell für Deutschland? in Bt/Prax
6/2013
Authors: Prof.Dr.Lipp/Katharina Baniewski/Benjamin
Dankert/Rebecca Newell
„Reform des Erwachsenenschutzes in der Schweiz“
Authors: Dr. Walter Boente
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg
Literature/Literatur:
„Die UN-Behindertenrechtskonvention und
das Betreuungsrecht“, in BtPrax
„Assistenz vor Stellvertretung“, in BtPrax
Author: Uwe Harm, Dipl.-GuardianshipAuditor
in Bad Segeberg, Schleswig-Holstein, Germany
April 2014, 10:15 am - 11.15 am
Gabriela Kluge, LLM, Medical Student
University Hamburg