23. August 2024
(Stuttgart) Until the end of 2022, the appointment of a guardian should be made by means of a handshake in the personal presence of the guardian (Section 1789 S. 2 BGB).
The Higher Regional Court of Frankfurt am Main (OLG) has now just ruled that an appointment can be effective even without a handshake and presence by telephone if it was otherwise made properly and there were understandable reasons in view of the pandemic situation for deviating from the statutory standard case.
Michael Henn, specialist lawyer for inheritance law from the DANSEF German Association of Lawyers, Notaries and Tax Consultants for Inheritance and Family Law e. V., Stuttgart, refers to this with reference to the OLG’s communication of August 8, 2024 regarding its decision of June 27, 2024, ref. 7 WF 74/23.
The applicant was appointed guardian of two children in April 2020 after the child’s parents were deprived of custody. The guardianship was to be carried out professionally. The legally stipulated commitment of the guardian took place by telephone due to the corona pandemic. A detailed note was made of the telephone call. According to the regulation in force at the time, the commitment was to be made “by means of a handshake in lieu of an oath” (Section 1789 S. 2 BGB as amended until December 31, 2022).
The state treasury rejected the guardian’s request for compensation because she had only been appointed over the phone. The district court, however, set the compensation as requested. The appeal against this was also unsuccessful before the higher regional court. The applicant had been effectively appointed as guardian, the higher regional court confirmed the district court’s opinion. She had been informed over the phone about the tasks and duties of a guardian and had been obliged to carry out the office faithfully and conscientiously.
The fact that this commitment was only made by telephone does not render the appointment invalid: the wording of Section 1789, Sentence 2 of the German Civil Code, which was in force at the time, does not preclude its validity. The commitment provided for therein “by means of a handshake in lieu of an oath” is merely a recommended requirement. Neither a handshake nor personal presence are therefore completely indispensable. This also corresponds to the meaning and purpose of the provision. “From the perspective of the historical legislator, the commitment by means of a handshake pursued the purpose of making the person obliged to take on the seriousness and importance of the duties he or she is to assume clear. However, this can also be done by telephone,” the OLG explained in more detail. The historical legislator also did not assume that the personal presence of the guardian was mandatory for the commitment.
The district court was right to assume that the circumstances of the individual case justified, as an exception, refraining from shaking hands in person. It was not important whether the obligation to do so in person would have been possible and reasonable despite the pandemic situation at the time. What was crucial was that, from the perspective of the time, there were understandable and reasonable reasons for deviating from the statutory standard.
The decision is not legally binding. Since the question of whether a professional guardian could also be appointed by telephone in light of the coronavirus pandemic has not yet been explicitly decided by the highest court, the Senate has allowed the appeal. It would have to be filed with the Federal Court of Justice within one month.
Henn recommended that this be taken into account and that legal advice be sought in all cases of doubt, whereby he also referred to the more than 700 lawyers and tax consultants nationwide who specialise in inheritance law, inheritance tax law and divorce law from the DANSEF German Association of Lawyers, Notaries and Tax Consultants for Inheritance and Family Law, www.dansef.de.
If you have any questions, please contact:
Michael Henn
lawyer
Specialist lawyer for inheritance law
Specialist lawyer for employment law
DANSEF – Vice President and
Executive Board Member
Lawyers Dr. Gaupp & Coll.
Gerokstr. 8
70188 Stuttgart
Tel.: 0711/30 58 93-0
Fax: 0711/30 58 93-11
stuttgart@drgaupp.de
www.drgaupp.de
