Healthcare proxy

A sudden accident, stroke or other serious illness can lead to mental and physical frailty. Making provisions for such times must be well thought out. If you want to avoid having to arrange a guardian in such cases, you can do so with a power of attorney.

Guardianship is no longer necessary if the person's affairs can be managed just as well by an authorised representative or by assistance in another form as by a guardian.

A health care proxy is therefore not only valid in cases of permanent need for care, but also if the person concerned is only temporarily unable to act independently and make sensible decisions. It represents an authorisation to act as a representative granted by a legal transaction. The prerequisite for a legal power of attorney is the legal capacity of the principal.
A health care proxy authorises a trusted person to act on behalf of the principal in predetermined situations and for predetermined tasks. It is possible to revoke or amend the power of attorney at any time, for example to adapt it to a current situation.

As legal transactions based on an enduring power of attorney are not regularly reviewed by third parties (the authorised representative becomes a representative through the enduring power of attorney and therefore makes decisions in place of the principal who is no longer capable of making decisions), you should only grant powers of attorney to particularly trustworthy, personally known persons with full legal capacity who are prepared to act on your behalf if necessary.

When drawing up the power of attorney, you can be guided by your wishes and needs and give additional instructions as to how certain of your affairs should be organised. It may therefore be advisable to include the desired authorised representative(s) when drafting the power of attorney.

Special features of the health care proxy

You should note the following special features when drawing up a health care proxy:

• You can only draw up a health care proxy if you have legal capacity.
• In principle, you can draw up the power of attorney informally. Nevertheless, it makes sense to have the power of attorney notarised. This is because the notary can provide you with comprehensive advice on possible legal effects and the content of your power of attorney. In addition, the notary can determine your legal capacity and officially document your identity, as well as protect you against incorrect, inaccurate and inappropriate drafting of the power of attorney.
• If you have a notarised power of attorney, this is a strong indication that you as the grantor of the power of attorney had legal capacity when it was drawn up. To eliminate any doubt, you can also obtain a medical certificate confirming your legal capacity by certifying your ability to form your own free will.
• If your power of attorney is also to be irrevocable for property and banking transactions, notarisation is mandatory.
• The health care proxy only becomes effective when your own incapacity to act and conduct business is medically established, but then takes effect immediately, in contrast to the care directive, where the authorised representative must first be appointed as a carer by the care court.
• Only the original of the health care proxy is valid, so keep it in a safe place, but at the same time make sure that the health care proxy can be found in the event of an emergency, as the authorised representative can only act on your behalf with it. You can deposit the original with a lawyer or notary. You can also register your power of attorney with the Central Register of Lasting Powers of Attorney.
• In the case of notarised powers of attorney, additional copies can be issued by a notary at any time, which are equivalent to the original in legal transactions.
• You can authorise several people to carry out different tasks on your behalf in the event of your incapacity. Please note, however, that you will also need to draw up different powers of attorney.
• You have the option of appointing a substitute authorised representative in the event that the designated authorised representative is no longer able or for other reasons is no longer willing to exercise the power of attorney on your behalf.
• If your authorised representative should also be allowed to make serious decisions regarding medical measures in which you as the principal could die or suffer serious and prolonged damage to your health as a result of the measure, you must explicitly mention this in your written power of attorney. In addition, the authorised representative generally requires the prior approval of the guardianship court (department of the local court) for actions in these areas. The same applies to possible restrictions on the freedom of movement of the person granting the power of attorney.
• To ensure that your power of attorney is up to date, you can renew it annually by signing it with the date and, if necessary, with witnesses.
• Public certifications carried out by a notary of a guardianship authority are almost equivalent to notarial certification (except in cases of irrevocable authorisation for real estate and banking transactions).
• Once a power of attorney has come into force, it is almost impossible to revoke it, as the person granting the power of attorney no longer has legal capacity. However, it is possible to include a provision in your power of attorney that allows a court-appointed carer to unilaterally cancel the power of attorney. This carer will be appointed by the guardianship court if the court deems it necessary for your welfare.

Bank power of attorney

A bank power of attorney authorises a person to carry out all transactions at the bank on behalf of the person granting the power of attorney. You should also renew a bank power of attorney annually. Even if notarisation is not mandatory, it offers the highest level of security against doubt. If you have drawn up a power of attorney for healthcare and this includes banking transactions and is notarised, it must be accepted by your bank. No additional bank authorisation is required for the authorised representative(s).

You should use the form provided by your bank for this purpose, as this avoids acceptance problems when exercising the power of attorney at a later date.

General power of attorney

You can use a general power of attorney to authorise one or more trusted persons to represent you in all matters without having to specify individual powers or tasks. A general power of attorney therefore requires a great deal of trust in the authorised person. For your security, it is therefore still advisable to list the individual tasks to be undertaken in detail. In contrast to a health care proxy, a general power of attorney applies to all areas of life, even if these are not explicitly mentioned. Even with a general power of attorney, only the original is valid, which authorises the authorised person to act on your behalf immediately and at any time. Although counselling and notarisation by a notary is not mandatory, it is strongly recommended.

• Registering health care proxies and advance care directives in the central register of health care proxies