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Skipping the appointed guardian appointment

If the person designated by the parents as guardian cannot become guardian for certain reasons, the family court will select another suitable person and appoint him or her as guardian.

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Detailed description

Parents can name a person as guardian for their children in a will or inheritance contract, or even spouses as guardians.
The person named there may only be bypassed as guardian if

  • the order would be contrary to the welfare of the ward
  • the ward has reached the age of 14 and objects to the appointment
  • the person is prevented from assuming guardianship for legal or factual reasons
  • the person has not declared his or her willingness to take over guardianship within four weeks of the family court's request
  • or there are certain reasons for exclusion for this person. For example, a person cannot be appointed as a guardian if:
    • is legally incapable
    • is a minor
    • is under supervision
    • was excluded by the child's parents
    • in an institution where the ward lives, works or is in another closely dependent relationship with the ward.

If one of the above reasons applies, the family court must select another guardian who is suitable to care for the person and property of the ward.

  • The family court must take the following aspects into account:
  • the will of the ward, his family relationships, his personal ties, his religious beliefs and his cultural background
  • the actual or presumed will of the parents
  • the living conditions of the ward.

 

Information

Prerequisites

The person named as guardian by the parents in the will or inheritance contract does not meet the requirements to become guardian.

Documents required

Will or inheritance contract in which the guardian is named.

Please note

Legal advice is not available at the district court. Please contact the persons authorized to provide legal advice. These are lawyers or notaries.
Affordable legal advice for people with low incomes is provided by the   Public Legal Advice (ÖRA).

Deadlines

The family court will select another guardian if the named guardian has not agreed to take over guardianship within four weeks of the family court's request.

Procedure

  • The family court first checks whether the parents have named a guardian in their will or inheritance contract.
  • If this is the case, the family court will check whether this person meets the requirements to become a guardian.
  • If the person meets the criteria, the family court will appoint that person as guardian.
  • If the person does not meet the criteria, the family court will select another person.
  • Preference is given to family members or people with whom the child has a trusting relationship.
  • The person selected by the family court is obliged to take over guardianship if he or she can reasonably be expected to do so, taking into account his or her family, professional and other circumstances.
  • The selected person may only be appointed as guardian if he or she has declared his or her willingness to take on the guardianship. If this does not happen within four weeks of notification by the family court, another guardian can be appointed.
  • The family court appoints the person as guardian at a hearing and instructs them about their duties.
  • The guardian receives his certificate of appointment

Processing time

Depends on the procedure. Usually a few weeks.

Fees

The costs of conducting the guardianship proceedings at the family court are borne by the child. Fees are charged if the ward's assets, after deducting liabilities, exceed 25,000 euros.

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Keywords: Guardian in the will incapable Other guardian than in the will Other guardian than parents want

Last updated: 05.02.2025