It concerns the petition 16/11889 “Problems in the event of the death of the person being cared for” . In some regional associations, the HVD can draw on the experience of bereavement counselors, care associations, the practice of its living wills and other social services, and more recently its own outpatient and inpatient hospice work. This enables the HVD to advocate for an extension of the guardianship law with good reason, with the core sentence: Any extension of the area of responsibility for the guardians should be described as precisely as legally possible and be accompanied by a corresponding compensation for expenses. The effort involved can vary greatly depending on the situation. This would have to be taken into account in a regulation, for example through hourly rates.
In response to question 1 regarding problems with the transition from guardianship to guardianship of the estate, the HVD confirms that the current legal situation does not always reflect the reality of life. In legal practice, according to his observations, a guardianship of the estate is only ordered if the deceased person being cared for was wealthy. In these cases, the procedure is usually unproblematic.
However, problems can arise where potential heirs are either unknown or it is not yet certain whether they will accept the inheritance. In addition, the general public is not sufficiently aware of the fact that surviving dependants are also obliged to bury the deceased’s body even if the deceased has left an inheritance. In these cases, the consequence is that the deceased is generally not buried until the matter has been clarified. This hardly seems justifiable to us for ethical reasons with regard to the dignity of the deceased.
Problems also arise when relatives cannot be present immediately due to the distance to the place of death and the caregiver is therefore the only contact person on site. Here too, the caregiver with an extended area of responsibility could ensure a dignified burial. The death of a person gives rise to a large number of tasks that constitute property rights. This includes, for example, deregistering with the pension insurance provider, energy suppliers, giving notice to leave the apartment, etc. A caregiver could take care of these often urgent tasks.
In the view of the HVD, it is therefore desirable that the position of the caregiver is strengthened and their cooperation in connection with the necessary burial of the person being cared for is made possible by law. Appropriate compensation for the work in this context is considered essential. It would not be appropriate if the guardian could only assert expenses in this context as a potentially uncertain claim against the heirs.
Question 2 concerns problems if care is continued after death. The HVD believes that the caregiver must take care of the things that cannot be postponed in the event of the death of the person being cared for. However, he cannot pay any follow-up costs. The follow-up costs would also include the costs of the emergency doctor. If, as a result of a change in the law, the guardian is assigned further tasks beyond death, the scope or type of activity and the question of remuneration must be taken into account.
In response to question 3, which legal problems the HVD sees in a possible continuation of the caregiver’s activity, the HVD points out that an extended position of the caregiver can always be accompanied by an increased potential for conflict with the heirs. This is the case, for example, if the heirs are late in coming forward.
Unfortunately, experience also shows that there are relatives who only take an interest in the deceased’s wealthy loved one after their death. In such cases, the guardian could also get into legal conflict situations. A statutory task description could provide a remedy here.
Extending the guardianship beyond the period after death entails the problems described above. A further extension, for example beyond the time of burial, is therefore not considered appropriate. These tasks should be fulfilled by the estate administrator.
However, it would make sense to entrust the guardianship associations with the probate guardianships as well. This should not be done by the person who previously took over the supervision, but by another club supervisor who may have the appropriate additional training. Remuneration would also have to be regulated in this structure and could be based on the hourly rates in guardianship law.
Judith Huber
