Interdisciplinary Seminar on
in Persons with Disabilities
GROUP 6
Marvin Büsselmann, Michaela Friedrich
Interdisciplinary Seminar on
in Persons with Disabilities
GROUP 6
Marvin Büsselmann, Michaela Friedrich
Dementia and refusing care
Tina W. with dementia is fiercely independent. Above all, she insisted upon remaining in her own home. She believed that she could cope without assistance, and refused to admit carers. In fact, only with such care could she be sustained in her own home. Her son sought a court order. Tina W. declared that she much loved her son, but did not need a representative and did not wish him to be appointed. The son was appointed as a Betreuer with powers to ensure that carers would be admitted and could properly perform their functions – or the son is appointed as an assistant, because otherwise her overriding desire to remain in her own home would not be sustainable.
The Betreuer or the assistant asks himself what is obliged to do.
Structure
●Introduction of dementia
●Legal background in Taiwan and Germany
●Care services and situations of people in need of care in Taiwan and Germany
●Taiwanese and German solutions for the case
Introduction to Dementia
●Common symptoms
○Attention deficiency
○Can’t remember things clearly
○Unhygienic behaviour
○Resist other’s care
resource: https://www.who.int/mental_health/neurology/dementia/infographic_dementia/en/
Legal background in Taiwan
Procedure
(Family Act §167）
●Civil Code
the capacity to make
declaration of intention,
receive declaration of
intention
the court’s judgment
opinions from psychiatric specialists
no→Guardianship (§14I)
★the person
○complete denial of legal capacity
★the guardian
○legal representative with full authorities (§1098I)
○respect the ward’s intent(§1112)
○protect the person’s best interests (§1113, 1097)
insufficient→Assistance
Legal background in Taiwan
Procedure
(Family Act §167）
●Civil Code
the capacity to make
declaration of intention,
receive declaration of
intention
the court’s judgment
opinions from psychiatric specialists
no→Guardianship (§14I)
★the person
○need approval when making significant financial transactions such as loan, guaranty, gift, sale of real estates
★the Assistant
○has the power to give approval
○exercise with the care of a good
insufficient→Assistance
Legal background in Germany
Procedure
Judgment of the supervisory court :
(§ 1896 BGB） No free will of the adult or approval →Betreuung (§1896 Ia BGB) for required areas of responsibility
●Civil Code
Cannot take care of his affairs, by reason of a mental illness or a physical, mental or psychological handicap
★the person
○needs support for all or some of his affairs
★the Betreuer
○has to protect the welfare of the supervised, but should consider his own wishes and ideas (§ 1901 II BGB)
○must comply with wishes to the extent that this is not iconsistent with the person’s welfare and is reasonable for the Betreuer (§ 1901 III BGB)
○must inform the court of any changes in the need for Betreuung ( § 1901 V BGB)
Law background in Germany
Procedure
Judgment of the supervisory court
(§ 1896 BGB） No free will of the adult or approval →Betreuung (§1896 Ia BGB) for required areas of responsibility
●Civil Code
Cannot take care of his affairs, by reason of a mental illness or a physical, mental or psychological handicap
★the court
○must appoint a suitable person (§ 1897 I BGB)
○appointment should consider suggestion of supervised (§ 1897 VI BGB)
○if there is substantial risk or danger to the person or the property ► reservation of consent ( § 1903 I BGB)
Care services in Taiwan
●Percentage of population over 65: 14.6% (2018), 20.1%(2025)
●Care Services - the gloomy fact
overloaded environment in nursing home; few spots left in ones with good quality care
●
Who can benefit?
●What are provided?
●Criticism
Care Services in Germany
●Task of the care services
○support concerning personal hygiene, organisation of the daily life, medication administration, housekeeping
○visit the persons in need of care at home
Persons in need of care by type of care (Germany)
4.1 million persons in need of care (2019)
provided at home (mainly by relatives) provided at home (nursing/care services) living in residential homes
source: www.destatis.de
Taiwanese solution
Can Tina make her decision?
from the aspect of law
●Tina’s condition
○Score 2 in CDR
○Severe memory loss
○Social participation is impaired
●Court’s judgement
○Appoint a guardian for Tina though she doesn’t want one
●Result
○Respect Tina’s wish only if it doesn’t contradict with her best interests
○Her guardian can allow carers entering her home on her behalf → disregard Tina’s individual autonomy (CRPD12 IV)
Discussion with Tina
●Cultural aspect: nursing homes in Taiwan
●Three probable reasons why she might insist on staying at home
○collective society: “Your sons/daughters are unfilial. ”
○social support : unwillingness to live in a new environment
e.g. “My friends are not there”, “There is no park where I am used to go to every morning.”
○financial burdens: “It costs too much.”
Discussion with Tina
1.She could remain in her own home with some extra care:
○
○Supportive Decision Making: accompany her to make her home safe and meaningful
1.She couldn’t remain in her own home even if there were extra cares:
○How to guide her to adapt into a new environment
Discussion with Tina
(the option of remaining at home)
●Be patient
○Give her adequate time to adapt to new people
●Provide mental support
○Let Tina know her family is aware of her feelings instead of making demands of her
●Give respect
○Treat Tina as a mature adult ,not a child beacuse she has dementia
Discussion with Tina
(the option of moving to a nurshing home)
●Culture
○Show empathy and express children’s concerns
●Social support
○Provide examples that there are other friends who are happy in the home
●Economic
○Tell Tina that the government will provide financial subsidy, so she can be less concerned
Discussion with Tina
(moving to a nursing home)
●More visits
○At the beginning, visit her more to reduce her anxiety
●Familiarity
○Bring some familiar items in Tina’s original home to the nursing home.
○E.g.: Family photos
●Friends
○Try to choose a nursing home where there are already Tina’s friends if possible.
Discussion with Tina - German Solution
●son wouldn’t be a betreuer according to Tina ‘s wish § 1897 para 4 BGB
●betreuer should get to know Tina
●betreuer has to give information about his task as betreuer
○betreuung is only about to make sure that nursing service gets acces (§1897 para 2 BGB)
Discussion with Tina - German solution
●betreuer has to explain the task of the care service
●there are not just negative but also positive consequences to be supported by a care service
●betreuer should give Tina the opportunity to choose the care service (1901 para 3 BGB)
Conclusion
●in both solutions:
○it‘s up to Tina and also up to the applied SDM of the betreuer or guardian if she can stay at home and accept the care service or if she has to move into a care facility
References
Picture Sources