Advance directive and health care proxy

Few people think about a health care proxy or a care directive in time. The thought usually comes up when a close relative or friend gets into a corresponding situation. You now want to make provisions and are suddenly faced with technical terms that you have never come across before. This article will help you to understand the situation.

In the care decree, you specify who should look after you or who you do not want to have as a carer under any circumstances. You can write that you wish to be cared for by Mr Müller and that you do not wish to be cared for by Mrs Maier. As soon as a guardian is required, he decides for you. You cannot influence his decisions.

There are no regulations regarding the form and content of a care directive. A letter that can be clearly assigned to you with the following content is sufficient:
"I want to be cared for by Mr. Müller (exact data), but under no circumstances by Mrs. Maier (exact data)".
Of course, this assumes that Mr. Müller knows exactly what you want. It makes more sense if you specify exactly how you want to be looked after; the more precise, the better. Mention where and how you want to live and which medical interventions you allow. You can also mention very mundane everyday things, for example, that godchildren should receive a present at Christmas or how the grave of your deceased partner is to be cared for.
The signature, place and date are important to make it clear that a care directive is to be valid. Unlike a will, there is no obligation to handwrite the document. A notary is not required for a care directive, even if decisions are to be made about real estate.

With powers of attorney and wills, there is always the question of legal capacity. You can also issue powers of attorney for care if you are no longer able to carry out legal transactions independently. There is a good reason for this, because such a disposition is always reviewed by the guardianship court.

As soon as there are doubts about your legal capacity, anyone who notices this can call the guardianship court. Usually it is close relatives. But you can also ask for a guardian yourself. The court will check whether care is necessary and for which matters. It does not have to follow your wishes, but it cannot, for example, appoint the undesirable Mrs Maier as your guardian. However, the judges are not obliged to choose Mr Müller as a guardian.
The courts generally examine the suitability of a person as a guardian. It is possible, for example, that the judges will conclude to let Mr. Müller decide only about living situation and medical treatments, but another person will decide about the real estate. Throughout the care, the court monitors whether the caregiver is acting in your best interests.
The separation of property management and health care is common practice to ensure that a caregiver does not gain a pecuniary advantage if, for example, he or she refuses life-prolonging measures. As a rule, a power of attorney or living will that has already been issued remains in force.

A health care proxy is a contract. As the grantor of the power of attorney, you determine who is to make decisions for you as the authorised representative.

Since it is a contract, certain rules must be observed:

• Contracts do not normally need to be in writing. However, since you probably cannot confirm the content of the contract, you should write a legally binding contract. This means that you must state the place, date, full names (first and last names), addresses and dates of birth of both contracting parties. Both parties must also sign the contract. This applies to health care proxy and living will.
• You can give the authorised representative the right to decide everything, i.e. a general power of attorney without a notary It is also possible to grant a general power of attorney for health care only for a part of the legal transactions.
• If the power of attorney holder is also to decide on real estate, a power of attorney without a notary is not sufficient. You must have at least this part of the power of attorney certified by a notary.
• Banking transactions usually require a power of attorney that is deposited with the bank. You should therefore ask the bank what needs to be done.

A form or a template for a health care proxy protects you from formal errors when drafting the contract. However, even the best forms of health care proxy are general. Therefore, they often do not fit your individual situation. It therefore makes sense to consult with a lawyer or notary.

The fact that a health care proxy is legally a contract also plays a role here. For this reason, only persons with legal capacity can issue a power of attorney. Since doubts about legal capacity often arise, especially in the case of very elderly people and those who have a disease that affects the brain, you should draw up the power of attorney with a notary. This confirms that you are in full possession of your faculties. The notary's fees for a health care proxy depend on the scope of his or her work. For the certification of a signature, about 20 to 100 euros will be charged. The costs of a notarisation are determined by the notaries' fee schedule. For assets of 100,000 euros, about 200 euros must be paid.

You specify the cases for which the power of attorney should apply, for example if you are in a coma or are no longer able to make decisions independently. Unlike the care directive, no one checks whether the requirements are met. Misuse is therefore possible.

There is a widespread misconception that the power of attorney expires upon the death of the principal. A general power of attorney is possible beyond death. Lawyers distinguish between

• Power of attorney until death: This is the usual power of attorney if you do not explicitly mention that it should also apply after your death.
• Transmortal power of attorney: This begins during the lifetime of the grantor of the power of attorney and remains in force after death.
• Post-mortem power of attorney: The power of attorney begins with the death of the principal. This is an alternative to inheritance that is not bound by the rules of inheritance law.

You can revoke a power of attorney at any time unless it has been expressly issued as irrevocable. In the case of a power of attorney beyond death, each heir can revoke a revocable power of attorney for himself without effect on the co-heirs. Heirs can also object to an irrevocable general power of attorney in the event of inheritance, but not to an irrevocable partial power of attorney.

Important: The revocation is, as lawyers call it, a declaration of intent that must be received. It therefore only becomes effective when it has been received by the authorised representative. Only authorised representatives with legal capacity can issue an effective revocation.

In the case of a guardianship order, the guardianship court ultimately decides to what extent your will will be respected. It also supervises that the guardian acts in your sense. This gives you the security that no one is acting against your interests. The care ends with your death, after which the law of succession applies.

With a health care power of attorney, you decide at your own discretion who can do what for you. However, you can only influence the decisions of the authorised representative to a limited extent. Since no one monitors him or her, abuse is possible. Furthermore, you have the possibility to make dispositions after your death that cannot be relinquished by heirs.