Civil law concerning the protection of people with dementia – a study from the perspective of German law

Abstract

Background: The ageing of the population presents society with ever new challenges. Technical so­lutions, such as chip monitoring for dementia sufferers, are becoming increasingly important. These phenomena make it necessary for lawyers to solve a number of new, hitherto unknown problems.

Research purpose and methods: The need for comprehensive regulation of the legal situation of people suffering from dementia is becoming more and more urgent, also in Polish law. In this respect, it may be useful to draw on the experience of Western countries, in particular, German solutions. The presentation of the experiences of our neighbours may be a good starting point for considerations under Polish law.

Conclusions: In German legal doctrine, there is a general consensus on the need to create a new philosophy that takes into account the specific situation of people suffering from chronic memory disorders and of the members of their families, who often take on the burden of care. Diseases such as Alzheimer’s, for example, are accompanied by chronic dysfunctions in the process of decision-making and the expression of will. These dysfunctions often lead to questions about the actual legal capacity of people affected by such a condition, especially the issue of their representation and care. There is no total legal incapacity, but only a possibility of excluding the ability to act within the scope and appointment of a guardian appointed by the guardianship court. However, it is not possible to deprive such a person of his or her ability to make dispositions by will. Consequently, in German law, the person affected by dementia and for whom the guardianship court appoints a guardian, will have the guardian as a representative in the fields of the guardianship. However, even in these fields the guardianship, as such, does not lead to legal incapacity. The guardianship court can only impose an additional consent requirement. On the other hand, legal incapacity, as such, is irrespective of guardianship. The concept of natural legal (in-)capacity adopted in the German system seems to fully protect the person suffering from dementia from the negative consequences of measures taken by him or her in a state of exclusion or significant restrictions on the freedom to formulate his will. If memory disorders have an impact on the shaping of will, the action performed will be considered invalid. The disadvantage of this solution is undoubtedly that the evaluation of the validity of an action can only be performed ex post. The solutions adopted are an expression of the conviction that dementia patients retain the right to self-determination. Therefore, marriages and divorces are possible. Advance directives play an important role in the process of protecting patients’ interests, by which a person can give prior provisions on therapy and treatment and precautional authorizations, by which a person can confer forehandedly authority to somebody else.