Guardianship in Denmark: rules, types, alternatives

What happens if a family member is struck by dementia, a serious mental illness or an accident and suddenly can no longer look after themselves or their finances? It is a situation many Danish families find themselves in unprepared. The answer is often guardianship (værgemål), but it is not a simple solution.

This guide reviews what you need to know about the guardianship rules in Denmark: what it is, when it can be established, which types exist, and how you and your family can avoid a compulsory guardianship by acting in time.

What is guardianship?

Guardianship is a legal arrangement that comes into force when a person can no longer look after their own interests, financially or personally. An appointed guardian (værge) then gets the power to act on the person's behalf within the scope of the guardianship.

Guardianship is governed by the Guardianship Act (originally Act no. 388 of 14 June 1995, with later amendments). It is the Agency of Family Law (Familieretshuset) that administers and supervises most guardianships for adults.

Guardianship is not something a family decides on its own. It is an administrative decision that requires a formal process and can have far-reaching consequences for the freedom to act of the person placed under guardianship. For that reason, it is only used when less intrusive options are not sufficient.

When can a guardianship be established?

Not everyone who needs help can be placed under guardianship. The law sets clear requirements.

A guardianship can be established if a person:

• Because of mental illness, including severe dementia, impaired mental development or another form of seriously weakened health, is unable to look after their affairs (section 5 of the Guardianship Act)
• Has a genuine need for it
• Is not sufficiently helped by a less intrusive alternative, for example a lasting power of attorney (fremtidsfuldmagt) or an ordinary power of attorney

The most frequent causes of an application for guardianship are:

• Dementia (Alzheimer's, vascular dementia and others)
• Acquired brain injury, for example after a stroke or accident
• Serious mental illness
• Developmental disability that affects the ability to act independently
• Substance abuse combined with cognitive impairment

Temporary conditions or occasionally reduced judgement are not a sufficient basis. A lasting and significant reduction in the ability to look after one's own affairs is required.

Types of guardianship

The Guardianship Act distinguishes between several models with different scope.

Ordinary guardianship (section 5)

The ordinary guardianship under section 5 is the most common. Here a guardian is appointed who acts on the person's behalf in the matters the guardianship covers. The guardianship can be limited to financial matters, personal matters or specific matters (section 5(3)).

A guardianship under section 5 does not in itself remove the person's legal capacity to act. As a rule, the person can therefore still enter into agreements themselves, unless there is at the same time a deprivation of legal capacity under section 6.

Joint guardianship (section 7)

Joint guardianship (samværgemål) is a voluntary and less intrusive arrangement. It can only be established if the person themselves requests it, and it concerns the person's financial matters. The person remains legally competent, and the joint guardian and the person act together in the matters the guardianship covers. It is suitable when a person needs help with their finances but retains an overview and wants to keep control.

Deprivation of legal capacity (section 6)

The most intrusive is a deprivation of legal capacity. It can only concern financial matters and means that the person becomes legally incompetent in the financial area and cannot themselves enter into binding financial agreements. Deprivation is only used in serious cases, for example where the person otherwise risks a significant loss or is exploited, and where lesser intervention is not enough. Deprivation of legal capacity is as a rule decided by the courts.

Who can apply for a guardianship?

A guardianship can be initiated in several ways:

• Relatives (spouse, cohabitant, parents, children, siblings) can submit an application
• The municipality can request guardianship if it identifies a need in connection with care or help
• The Agency of Family Law can take the initiative itself, for example on the basis of a report of concern
• The person concerned can apply themselves

It does not require the person to agree to the application. This is one of the difficult aspects of a compulsory guardianship: the process can be carried through even if the person objects, if the conditions are met.

The process: how a guardianship case is handled

A guardianship case is a formal legal process. The typical steps are:

Step 1: application to the Agency of Family Law. The application is submitted in writing. It is an advantage to enclose medical information, a description of the situation and the need, and a proposal for who should be the guardian (typically a close family member).

Step 2: medical assessment. The Agency of Family Law typically obtains a medical certificate describing the person's condition and the need for a guardianship.

Step 3: hearing of the party. The person the case concerns must be heard and given the opportunity to comment. If the person has a support person or lawyer, they take part.

Step 4: decision. In less complex cases, the Agency of Family Law makes the decision itself. Cases about deprivation of legal capacity (section 6) and cases where there is disagreement are handled by the courts.

Step 5: appointment of a guardian and supervision. Once the decision is made, the guardian is appointed, who can be a family member or a professional guardian. The Agency of Family Law then supervises the guardianship.

Case handling often takes several months and can be prolonged in complex cases or where there is disagreement.

The guardian's role and responsibility

Being a guardian is a responsible task with clear legal obligations.

What may a guardian do?

A guardian can, within the scope of the specific guardianship, act on the person's behalf in the matters the guardianship covers. This can include:

• Paying bills and managing bank accounts
• Entering into agreements about housing, care and insurance
• Representing the person before authorities
• Making decisions about personal matters, if the guardianship covers this

What may a guardian not do?

• The guardian may as a rule not give gifts from the person's funds, apart from customary gifts, and under no circumstances to themselves
• Larger dispositions, for example buying or selling real property, normally require the approval of the Agency of Family Law
• The guardian cannot make or change a will on the person's behalf, as a will is strictly personal. The person's own ability to make a will depends on whether they can act rationally

Supervision and accounts

The Agency of Family Law supervises that the guardian acts in the person's interest. Depending on the situation, there can be requirements for accounts, prior approval of special dispositions and auditing of the accounts. If a guardian fails in their role, they can be removed and, in serious cases, prosecuted.

Guardianship or a lasting power of attorney: what is the difference?

This is where many families discover they should have acted earlier. A lasting power of attorney is in many cases a better alternative to a compulsory guardianship, but it can only be created by the person it concerns while they are of sound mind.

With a lasting power of attorney, you choose yourself, while you are well, who is to act on your behalf and what the attorney may deal with. You keep your legal capacity fully until the power of attorney is brought into force. With a compulsory guardianship, on the other hand, it is the Agency of Family Law or the courts that decide who becomes the guardian, and your legal capacity can be limited or removed. A lasting power of attorney is based on your own choice and is private, while a guardianship is an authority-run arrangement with ongoing supervision.

The conclusion is clear: a lasting power of attorney is often the better solution, if it is created in time.

Avoiding compulsory guardianship: create a lasting power of attorney in time

Many people do not know about the lasting power of attorney until it is needed, and by then it can be too late. A lasting power of attorney must be created while the person is still of sound mind and can understand and sign the document.

A lasting power of attorney lets you:

• Choose yourself who acts on your behalf
• Decide what the attorney may deal with (finances, personal matters or both)
• Keep your legal capacity fully while you are well
• Spare your family a heavy and potentially conflict-ridden authority process

A lasting power of attorney is created digitally and must be acknowledged before a notary, who assesses, among other things, whether you are able to understand and voluntarily sign the document. There is a small notary fee for the acknowledgement.

If instead you need an ordinary power of attorney, for example to let a spouse or child act on your behalf in a specific, defined situation, that is a different type of document, not intended to come into force on loss of legal capacity.

Frequently asked questions about guardianship

What is the difference between an ordinary guardianship and deprivation of legal capacity?

An ordinary guardianship (section 5) means that the person gets a guardian but as a rule keeps their legal capacity and can enter into agreements themselves. Deprivation of legal capacity (section 6) is the most intrusive: the person becomes legally incompetent in the financial area and cannot themselves enter into binding financial agreements. Deprivation is as a rule decided by the courts and is only used in serious cases.

What is a joint guardianship?

A joint guardianship (section 7) is a voluntary arrangement that the person must request themselves. It concerns financial matters, the person remains legally competent, and the joint guardian and the person act together. It is the least intrusive form of guardianship.

Can a compulsory guardianship be established if the person does not want it?

Yes. A compulsory guardianship can be carried through even if the person objects, if the conditions are met. The person has the right to be heard and can have the decision reviewed, but cannot on their own prevent a guardianship.

Can a family member be appointed as guardian?

Yes, it is in fact the most common. An effort is made to appoint a suitable family member, most often a spouse, an adult child or a sibling. If that is not possible, for example due to family conflict or a lack of a suitable person, a professional guardian is appointed.

Can a guardianship be lifted?

Yes. If the conditions are no longer met, for example if the person's condition improves, the Agency of Family Law or the courts can lift the guardianship. This normally requires documentation of the improvement, typically a new medical certificate.

Can you create a lasting power of attorney for a person with early dementia?

Only if the person still has their legal capacity intact, that is, can understand and voluntarily sign the document. It is the notary's task to assess this. The earlier you act, the safer the process. If you wait too long, it can become impossible to create a lasting power of attorney, and a guardianship then becomes the only alternative.

What is the difference between a power of attorney and a lasting power of attorney?

An ordinary power of attorney gives a person the right to act on another's behalf in a specific, defined situation. A lasting power of attorney, on the other hand, is designed to come into force in the future if the grantor loses the ability to act on their own behalf. An ordinary power of attorney can lapse if the person loses their legal capacity, while a lasting power of attorney is activated precisely in that situation.

Who supervises a guardian?

The Agency of Family Law. Depending on the case, accounts can be required, and the Agency can obtain information about how the guardianship is managed. Relatives or others can contact the Agency with a concern about a guardian's management.

What happens to a guardianship if the person dies?

The guardianship ends automatically on the person's death. The handling of the estate then passes to the probate court, an administrator or the heirs, depending on the circumstances of the estate and any will.

Conclusion

A compulsory guardianship is a necessary protective mechanism for those who can no longer look after their own interests, but it is a heavy and intrusive process for both the person concerned and the family. The best strategy is prevention: create a lasting power of attorney while you still can. It gives you control over who steps in, what they may do, and on what conditions, and it can spare your family a lengthy authority process in an already difficult situation.

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The content of this article is for guidance only and does not constitute legal advice. For advice on your specific situation, you should contact a lawyer or the Agency of Family Law.