Judgments Personal hearing in the supervision procedure is obligatory

Federal Court of Justice: compulsory demonstration if necessary

(jur) Before setting up care, those affected must always be heard by the Supervision Court. This not only serves the right of the person concerned to give him a legal hearing, but above all, the court should thus receive a direct personal impression, the Federal Court of Justice (BGH) emphasized in a decision of 29 June 2016 (Az .: XII Eg 603/15). Just because the supervisor refuses to have the care or refuses the supervisor, this is no reason to give up the care, said the Karlsruhe judge.

In this case, a divorced man had requested the care of his ex-wife, a pharmacist and former lawyer. The background was a profit-sharing procedure that has been ongoing since 2007 as a result of the divorce. It is clarified how the respective assets of the divorced spouses is to be divided. But the ex-wife denied any cooperation, so that the gain-compensation process could not be completed.

The divorced man finally wanted to put his ex-wife under care and referred to her mental health problems. Support should only be provided in the area of ​​representation in the profit-sharing scheme.

The woman refused the care and refused the personal examination by an expert. However, he assumed that the woman was "partially incapable of business" in all of her divorce proceedings.

The district court Frankenthal did not convince this and rejected the appointment of a supervisor. However, the woman did not listen to it personally. This just did not come for a hearing.

In its ruling, the BGH overturned the Landgericht decision. According to the law, a personal hearing of the person concerned must take place before the appointment of a supervisor. However, this does not mean that the hearing can generally be waived if it does not come to the Betreuerbestellung.

For the personal hearing by the Supervision Court serves not only the right to be heard by the person concerned, but also "to give the court an immediate impression of the person concerned". If this does not appear to be a hearing, it would first be necessary to exhaust casual opportunities, such as looking for the victim in his home. If necessary, the person concerned can also be shown by force for hearing.

The lack of willingness of the ex-wife to cooperate with a caregiver, let also the necessity of the stimulated care not be dropped. Here, the woman refused a personal assessment by the expert, so that the report created can not justify a care. But there are sufficient indications for a need for care afterwards. The court should have clarified this with the personal hearing. fle