Facts
The present case concerns the incapacitation of a person due to mismanagement pursuant to Art. 370 of the Swiss Civil Code (ZGB). The plaintiff was placed under guardianship by the guardianship court, as she exposed herself and her family to the risk of distress or impoverishment through the manner of her asset management.
The plaintiff had claimed public assistance, as she was unable to earn a sufficient income or manage her earnings in a reasonable manner. For example, she did not pay for her most essential living expenses and used her income in other unreasonable ways.
The plaintiff argued that her incapacitation violated the principle of proportionality and that instead, a participation and administrative advisory board pursuant to Art. 395 ZGB should have been ordered.
Considerations
The Federal Supreme Court found that mismanagement within the meaning of Art. 370 ZGB exists not only when an existing fortune is managed in a senseless and unintelligent manner, but also when someone is unable to procure the necessary means of subsistence due to lethargy, recklessness, or similar reasons.
The decisive factor is the reason for the need for assistance. If the reason lies in temporary difficulties that the person concerned can overcome on their own, there is no reason for incapacitation. The same applies to persons who require assistance due to illness…