KESR-ABC

A person is capable of judgement if he or she acts 'reasonably' in everyday life. According to the ZGB, this is any person who is not incapable of acting rationally because of his or her young age, mental disability, psychic disorder, intoxication or similar condition.
A person's capacity of judgement may be permanently or only temporarily absent. The law does not define the age at which children are capable of judgement. It always depends on the specific circumstances. Children and adolescents are considered capable of judgement when they are able to assess a situation for themselves, draw reasonable conclusions and act accordingly.

A person with capacity to act has both rights and obligations (Art. 12 ZGB). For example, they can conclude an employment or rental contract. This presupposes that they are capable of judgement and of legal age. The capacity to act can be restricted. For example, spouses can only terminate the joint family home with the consent of the other. Or adults who are affected by KESB measures can only enter into certain legal transactions with the consent of the deputy. Those affected by general deputyship, on the other hand, are not authorised to act.

With care-related hospitalisation, people can be admitted to a clinic or home against their will. This constitutes an encroachment on their rights and freedom. The measure may therefore only be ordered if a doctor determines that the person concerned is a danger to themselves and cannot be cared for or treated in any other way. This measure must be proportionate, comply with the legal requirements and have been ordered in a correct procedure. Otherwise, those affected can appeal.

The institution also regularly reviews whether the measure is still appropriate. The KESB also does this. In addition, the person concerned or a close relative can submit a request for discharge at any time. Affected persons must be released immediately if the conditions for placement are no longer met.

If the person concerned does not agree with the decision to release them, they can lodge an appeal. A court will then review the decision. The appeal does not have to contain a statement of reasons and the court must generally reach a decision within five days.

The child representative or child advocate represents children and young people before the court and the KESB (Art. 314 a ZGB, Art. 290 ZPO). They accompany them through the proceedings, inform them and ensure that their wishes are taken into account when decisions are made and their situation is assessed. Child representation is ordered in particular when children and young people are not listened to enough. This can be the case in the event of separation or divorce, for example, if children are drawn into the conflict.

Children and young people who are capable of judgement can request child representation themselves.

In the clarification phase, the authority checks whether the person concerned is in need of protection and whether a child and adult protection measure needs to be ordered. To do this, it obtains all the information it needs to make a decision. For example, from the family, the school or the doctor. In any case, it listens to the person concerned. The KESB also clarifies the current situation in detail when it comes to changing or cancelling an existing measure. This can take several weeks. If the authority identifies an urgent need for action, it can order a precautionary or even a super-provisional measure.

An abstract risk may exist before a concrete situation arises. This is the case, for example, if a relative represents a relative as a private deputy and they are also members of a community of heirs. If there is a conflict of interest, the KESB can withdraw the powers of the private deputy in this matter (Art. 403 para. 2 ZGB). This principle also applies analogously to child protection law (Art. 306 Para. 3 ZGB). If parents living apart cannot agree on the medical care of their child and this is urgently needed, the KESB can provide the minor with a deputy or a child advocate. Alternatively, if a member of the authority is related to the person concerned, there is also a conflict of interest and they must step aside.