Discrimination under the provisions of the General Equal Treatment Act
in civil law dealings of persons with a disability who have been appointed a custodian pursuant to Section 1896 of the Civil Code
- Factsheet on the research project -
Authors: Susette Jörk, Anne Kobes, published by the Federal Anti-Discrimination Agency (FADA) Year of publication: 2011
Brief overview
This expert opinion examines if and when discrimination against disabled persons who have been placed under custodianship pursuant to Section 1896 of the Civil Code occurs in civil law dealings. It begins by giving insights into the concept, the legal framework and the impact of custodianship. It goes on to examine the cases and circumstances in which discrimination occurs according to the provisions of the General Equal Treatment Act.
Main results
Custodianship law pursuant to Section 1896 of the Civil Code
In 1992, a paradigm change was introduced with the coming into force of the Custodianship Act. From that time onward, it was no longer possible to constitutively establish the capacity to contract of persons who are restricted in the determination and exercise of their own will.
A legal custodian is appointed pursuant to Section 1896 Civil Code if a person of full age, by reason of mental illness or a physical, mental or psychological disability is unable, in whole or in part, to take care of his/her affairs. The appointment of a custodian may henceforth only extend to those tasks and areas in which a custodianship is necessary. In cases where the affairs of the affected person can be sufficiently handled by an authorised person and by other means, the custodianship is not considered necessary and no custodian is appointed by the courts.
The custodian represents the person under custodianship as his/her legal representative, in and out of court, with respect to the assigned group of tasks. In principle, the person under custodianship retains full capacity to act. He or she may also take legally binding actions without the consent of the custodian.
Discrimination in everyday life
The expert interviews conducted within the framework of the expert opinion show that, time and time again, the legal situation is misconstrued in everyday life. The authors present several examples to illustrate that, in practice, custodianship is sometimes erroneously equated with the loss of the capacity to contract and the ability to reason. Persons under custodianship often experience discrimination, for example when entering into rental contracts or performing banking transactions. In addition, persons under custodianship are denied medical treatment by doctors if the custodian is not present.
These types of discriminations probably often occur as the result of ignorance and uncertainty about the legal effects of custodianship. This ignorance leads to patronisation and/or disenfranchisement and violates the right to self-determination and the personality rights of the person under custodianship.
The provisions of the General Equal Treatment Act
Legal custodianship itself is not mentioned as a discrimination characteristic in the General Equal Treatment Act. The point of reference to the General Equal Treatment Act is rather the existence of a disability. Exceptions aside, cases of discrimination related to custodianship are invariably cases of indirect discrimination. If a person experiences adverse treatment owing to the custodianship, such treatment is only admissible if it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. Since persons under custodianship generally have no knowledge of the possible reasons of justification, it is difficult to enforce the rights provided for in the General Equal Treatment Act.
Definition of terms
Indirect discrimination is discrimination in a case where formal equal treatment would result in a downgrade. Indirect discrimination is more admissible than direct discrimination. The latter is only admissible if one of the reasons for justification listed in the General Equal Treatment Act is present.
Options for action
The authors of the expert opinion recommend:
- comprehensive education and awareness-building,
- inclusion of the topic in the curricula of relevant courses of study and vocational training,
- improved education on this topic for those affected,
- elimination of obstacles to the enforcement of legal provisions by lowering the burden of proof and by granting affected persons a right to information.
