Facts
In this case, the issue was who should bear the costs of representation of an affected person in adult protection proceedings under Art. 449a of the Swiss Civil Code (ZGB). The Family Court had initially ordered a representative guardianship, which was overturned by the Higher Court and instead ordered a representation under Art. 449a ZGB. The costs of this representation were imposed by the Higher Court on the appellant (a daughter of the affected person).
The appellant considered this procedure to be in violation of federal law and requested that the costs of representation be borne by the assets of the affected person, subsidiarily by the respondent and the representative or by the state treasury.
Considerations
The Federal Court dismissed the appeal. It stated that the costs of representation under Art. 449a ZGB are to be regulated according to the general provisions on guardianship. Accordingly, these costs are to be covered primarily from the assets of the affected person and subsidiarily by the competent community.
The Federal Court justified this by stating that Art. 449a ZGB structures the representation as a form of guardianship. Therefore, the provisions of Art. 404 para. 1 and 3 ZGB, which refer to cantonal law, are decisive for the cost regulation.
Further…