Procedural guardianship

A procedural guardian is appointed when, in guardianship proceedings, the court intends not to hear the person under guardianship.

This may be the case if the person concerned is no longer capable of taking part in the proceedings, i.e. can no longer exercise the “right to be heard” because they do not understand what it is about, and can no longer file applications or lodge appeals.

If, on the other hand, a serious intervention in the life of the person under guardianship is planned, a procedural guardian is appointed to compensate for this incapacity (section 276 FamFG).
Serious interventions include, for example, the sale of a house, placement in a closed facility, sterilisation, etc.

The procedural guardian therefore primarily represents the “objective interest” of the person concerned.

Using the example of the sale of a property, this means: the procedural guardian must check whether the sale is necessary at all (e.g. because the person concerned needs so much care that a move to a care home is necessary and a return is impossible). He must also assess whether the price obtained for the property is appropriate.

To do so, he should check whether the valuation report is conclusive and whether the property was marketed intensively enough or perhaps sold far too quickly. Finally, he has to check whether the notarial contract is correct or whether the person concerned could suffer disadvantages through formal or substantive errors.