An adult wishes to rent your flat and is accompanied at the viewing by a legal guardian (Betreuer). For a clean contractual process you need to know who acts independently, who provides support and who may lawfully represent the person. The mere presence of a guardian does not answer that. This article deals with legal guardianship in Germany, not social everyday assistance or Austrian adult representation.
Do not equate guardianship with lack of legal capacity
The official justice information explains that the ordering of a guardianship does not in itself change legal capacity (Geschäftsfähigkeit). Whether a person can validly conclude a contract themselves cannot be deduced solely from the word “guardianship” (Betreuung). A separate consent requirement (Einwilligungsvorbehalt) can be decisive for particular declarations. [JUSTIZ] [EINWILLIGUNG]
Our practical recommendation: Speak with the person seeking the flat in an understandable way about the specific offer. Organised need for support is not an invitation to negotiate solely with their companion over their head. Nor do you need a bundle of medical records for an ordinary first viewing appointment.
Clarify the concrete scope of duties
Under § 1823 BGB a guardian can represent the person under guardianship in court and out of court within their area of responsibility. The power of representation is therefore not to be derived as a blanket authority for every conceivable matter from a job title. § 1821 emphasises support in taking care of legal matters oneself and the necessary use of the power of representation. [VERTRETUNG] [UNTERSTUETZUNG]
If a declaration is to be made by the guardian, clarify the proof required for that exact transaction. Which person represents whom, for which area of responsibility and in which concrete matter? The examination can be limited to the relevant information. A personal relationship of trust alone does not replace a necessary legal authority.
Treat a consent requirement separately
§ 1825 BGB governs the court-ordered imposition of a consent requirement (Einwilligungsvorbehalt) for affected declarations of intent within the area of responsibility. Guardianship and a consent requirement are therefore different points to examine. Whether the specific tenant declaration is covered and what consent or further handling is required should be clarified before concluding the contract. [EINWILLIGUNG]
Do not use a general additional clause that as a precaution treats every person under guardianship as if they were a minor. In an unclear constellation the right solution is a concrete legal classification of the intended declaration. A signature given “just to be safe” does not automatically determine its effect.
Distinguish the tenant party from the acting person
If someone makes a declaration within their power of representation in the name of the represented person, it generally operates for and against the represented person under § 164 BGB. A correctly represented tenant party is therefore not replaced as a private tenant merely because of the guardian. [WIRKUNG]
Our editorial recommendation: Compare names and roles in the draft, the signature area and the payment arrangement. Who is actually intended to use the flat and who will be the contracting party? If another obligation or security is desired, that is a separate question and not an implied consequence of the guardianship. This article does not confirm any special payment guarantee.
A hypothetical procedure without premature role changes
In the fictional case Felix is looking for a flat. His guardian coordinates appointments and explains that she supports him in certain legal matters. She therefore does not immediately enter the tenancy as tenant in the contract. First it is clarified whether Felix makes the declaration himself or whether a concrete representation is envisaged and which evidence fits that.
The result is implemented in a comprehensible contract version. Felix is given the opportunity to understand the actual decision to live there and the practical conditions. The example contains neither a diagnosis nor a finding about his legal capacity. It shows a procedure that clarifies the actual roles before the conclusion.
Also agree on a workable communication afterwards
As a practical organisation you agree who coordinates ordinary appointments and which contact is intended for which task. Legally significant declarations are treated separately. A telephone number for repairs does not automatically confirm a receipt or representation authority for every contractual amendment.
Keep relevant changes to the responsible representation up to date and review new legal transactions again according to their subject matter. This keeps the housing decision, the tenancy agreement and helpful support connected without displacing the person under guardianship from their own tenancy.