OGH on the liability of the guardian for adults vis-à-vis third parties

Jun 30, 2021 Benn-Ibler Rechtsanwälte

The duties of a guardian to safeguard and promote the well-being of the ward are only relevant vis-à-vis the ward, but not vis-à-vis third parties.

In the case at hand, the defendant was appointed as guardian for an adult (Erwachsenenvertreter, formerly Sachwalter) who resided in a residential care facility operated by the plaintiff. A social welfare subsidy was paid to the ward to cover the costs of the care facility. However, after a certain point in time, this subsidy was no longer granted because the extension of the ward’s residency permission, which was required for the application, and the application itself had not been submitted in time.

The plaintiff now claimed EUR 13,000 in damages claiming that the defendant, as the appointed guardian, had failed to take the steps necessary for a successful application for the coverage of costs. Thus, it was alleged that the guardian had failed to promote the welfare of the ward in the best possible way and had therefore violated his duties to act and to exercise due care.

After the Court of Appeal upheld the judgement of the court of first instance dismissing the action, the Austrian Supreme Court (Oberster Gerichtshof, OGH) stated that the duties of a guardian to safeguard and promote the welfare of the ward are only relevant vis-à-vis the ward, but not in relation to third parties. The duties of conduct are exclusively intended to protect the ward from legal disadvantages, in particular from any financial disadvantages. In this case, the plaintiff's financial disadvantages were an irrelevant collateral damage of a potential breach of duty, which is why the appeal was unsuccessful.

OGH 1 Ob 52/21k (21.04.2021)