You can download our checklist for preparing a general and health care proxy here.
Health care proxy
If you would like to make provisions for times when you are no longer fully capable of acting yourself, you can authorize a trusted person to handle all matters for you in a power of attorney. This includes, in particular, all personal matters (e.g. medical treatment decisions, accommodation, post and telecommunications) as well as financial matters (e.g. banking and insurance, property, litigation, tax issues).
Your spouse and your relatives are not automatically authorized to act on your behalf and make decisions for you in health matters! Nor can your partner dispose of a jointly purchased property alone! Instead, a corresponding power of attorney is always required. The right of emergency representation of spouses introduced in 2023 (Section 1358 BGB) only applies in health matters and only for six months. It therefore does not replace a power of attorney!
If you have not established a power of attorney, the guardianship court will appoint a guardian for you if you are no longer able to manage all or part of your own affairs. This may also be a stranger. Many people do not want a stranger to take care of their personal and financial affairs for them. Even if your partner or one of your relatives is appointed as your guardian, he/she is subject to comprehensive approval and accountability obligations to the guardianship court. You can avoid this with a power of attorney.
In an enduring power of attorney, you specify who should take care of your affairs on your behalf. This may be your spouse or partner, relatives or other close associates. You can authorize one or more persons. You can also specify whether all authorized representatives can make decisions for you alone (individual power of representation) or whether two or more authorized representatives must always make decisions together (joint power of representation).
It is important that the authorized representatives you choose are people you trust. This is because authorized representatives can bind you comprehensively, dispose of your assets and make existential medical decisions for you. You should therefore only authorize persons whose loyalty you can be sure of due to a long-standing personal relationship.
The difference between the internal and external relationship is important in a power of attorney:
The power of attorney applies immediately and without restriction to all persons with whom the authorized representative comes into contact (i.e. in the external relationship). This means that if the authorized representative concludes contracts for you, issues instructions or otherwise makes declarations or acts on your behalf, these are effective externally. This applies regardless of whether the precautionary event (illness, infirmity) has already occurred or whether you are still able to manage your own affairs. All persons to whom the authorized representative presents a copy of the power of attorney document can rely on the fact that the power of attorney is effective. They do not have to ask you whether you are ill or incapacitated and they do not have to ask for a medical certificate.
If such a restriction were also agreed with effect for the external relationship , there would be uncertainty for legal transactions: your contractual and business partners would not be able to rely on whether the power of attorney is actually effective. This is because they cannot check with certainty what your state of health is as the principal and therefore whether the precautionary event has already occurred. Even medical certificates cannot always provide reliable proof, especially as the question arises as to how up-to-date the certificates must be in each case. A power of attorney that you only grant to a limited extent in the external relationship cannot therefore guarantee comprehensive and secure provision for you. The court may then have to appoint a guardian, which is something you want to avoid.
“A conditional power of attorney that is based on the existence of legal incapacity or the need for care is practically unusable in legal transactions.”
(Kordel, in: Kersten/Bühling, Formularbuch und Praxis der Freiwilligen Gerichtsbarkeit, 27. Aufl. 2023, § 96 Rn. 61).
The internal relationship, i.e. the relationship between you and the authorized representative, is different. In this case, you instruct the authorized representative to only make use of the power of attorney if you are no longer able to manage all or part of your affairs yourself. The authorized representative must adhere to this if he or she does not want to become liable to pay you damages or even be prosecuted. However, if the authorized representative violates your instructions internally, their actions towards third parties (e.g. contractual partners, banks, insurance companies) are generally still effective. It is therefore important - as already described - that you only authorize persons who you are sure will only use the power of attorney in your interests.
If there are several authorized representatives, it is usually advisable for each representative to be able to make external decisions alone. This is because the other authorized representative(s) may be ill or unavailable. In the internal relationship, however, you can stipulate that a certain order of precedence applies to the authorized representatives or they must consult with each other before making a decision. As a safeguard, you can authorise a main authorised representative (e.g. your spouse/partner) to revoke the power of attorney in favour of the other authorised representatives. Your main authorised representative can then revoke the power of attorney if he/she gains the impression that another authorised representative is not using the power of attorney in your interests.
At your request, we will register your power of attorney in the Central Register of Powers of Attorney of the Federal Chamber of Notaries. All guardianship judges in the Federal Republic of Germany have access to this register. In this way, you can ensure that your authorized representative is notified in an emergency and that a guardian is not appointed even though you have issued a power of attorney.
Care directive
As a rule, we also include an advance care directive in the power of attorney. This specifies who should be appointed as your guardian if necessary. As a rule, care is no longer necessary if you have appointed a healthcare proxy. Should the appointment of a guardian nevertheless be necessary, you can stipulate as a precaution that your authorized representative should then also be appointed as guardian.
Living will
In a living will, you specify which medical treatments you want or do not want in the event of a certain medical condition. You therefore provide your authorized representatives with guidelines for their decisions. The authorized representatives must implement your wishes together with the doctor if the state of illness described in the living will is reached and you are no longer able to express yourself. In the general and health care proxy, you specify who your trusted person(s) is/are who may represent you and make decisions for you. On the other hand, in the living will you specify which medical decisions your trusted person(s) should make in an emergency.
In a 2016 ruling on living wills, the Federal Court of Justice required that the relevant diagnoses and the desired (or not desired) treatment measures be described as specifically as possible. In a new decision from 2018, the Federal Court of Justice deemed it sufficient to state that “life-prolonging measures should be omitted” if “there is no prospect of regaining consciousness”. The treatment situation was described in sufficiently concrete terms, which was sufficient, even if the medical measures were described in less detail. Irrespective of this, you should make your living will as precise as possible in order to provide your relatives and the doctors treating you with clear instructions. This will ensure that your individual treatment wishes are implemented. You should also discuss these questions with your doctor. Please contact us if you need help formulating your living will or would like to have it notarized.
The establishment of a notarized power of attorney offers you the following advantages:
- If you are no longer fully capable of acting, your affairs will be managed exclusively by the persons of trust you have chosen. You decide for yourself who will look after you and represent you in financial and personal matters.
- A comprehensive health care proxy makes the appointment of a legal guardian - often a stranger! - dispensable.
- Your healthcare proxy does not have to answer to the court like a guardian. As a rule, they do not have to obtain any approvals for their actions.
- In this way, you make it easier for your trusted persons to act on your behalf and save yourself the time-consuming task of fulfilling your obligations to the court.
- You will also save yourself and your relatives the sometimes considerable costs incurred by the guardianship court and the guardian if a guardian has to be appointed for you at a later date.
- Your trusted persons are also able to act immediately after an inheritance. They do not have to wait until the probate court opens a notarized will or an inheritance contract, which can take several weeks. If there is neither a notarized will nor a contract of inheritance, it may even take several months to obtain a certificate of inheritance. It may then no longer be possible to deal with urgent matters in good time.
- Only with a notarized power of attorney can your trusted person really carry out all transactions on your behalf where representation is legally possible. In particular, your trusted person can also represent you in all real estate transactions and - if necessary - conclude loan agreements and all other banking transactions in your name. However, a written (not notarized) power of attorney is not sufficient to dispose of real estate and to conclude and amend consumer loan agreements.
- The notary will check your legal capacity when granting the power of attorney so that the effectiveness of the power of attorney is established for all business partners and doctors.
- The notarial power of attorney is always formulated clearly and with legal certainty and is up to date with the latest legislation and case law.
- If the copy of the power of attorney issued to your trusted person is lost or several copies are required, the notary may issue further copies at any time. The original of the power of attorney remains with the notary; the (sealed) copies issued by the notary are legally equivalent to the original.
- At your request, we will register the notarized power of attorney in the Central Register of Guardians of the Federal Chamber of Notaries. As a rule, a guardianship judge will first check whether a power of attorney has been registered before appointing a guardian for you.
“Individual ministries of justice have published forms according to which the health care proxy with care and living will can be drawn up using the multiple-choice procedure. These publications, as well as ready-made form texts, are not suitable for providing a sufficient basis for the decision on life or death, in particular the lack of explanation by expert advisors.”
(Spiegelberger, Vermögensnachfolge, 3. Aufl. 2020, § 3 Rn. 19).
We recommend that you let us formulate the general and health care proxy for you and then have it notarized by a notary. On the other hand, we advise against using sample texts/forms from other providers and merely having your signature notarized on the documents. The following considerations in particular speak in favor of this:
- When notarizing signatures, the notary does not check the content of the declaration. He therefore assumes no liability for the completeness and correctness! The certification only refers to the fact that the signature was made before the notary. It therefore only proves the identity of the person signing. However, it does not guarantee the accuracy of the content.
- In the case of notarial authentication, however, the notary is also responsible for the content of the deed. In the case of a notarized general power of attorney and health care proxy, we draw up the text according to your requirements. The notary guarantees that the text is legally correct and up to date with the latest legislation and case law.
- Only a notarized power of attorney actually enables all transactions, in particular the conclusion of consumer loan agreements (see Section 492 (4) sentence 2 BGB) and all real estate transactions.
- In our experience, forms for powers of attorney often do not contain important provisions, for example: gifting authority, granting of sub-powers of attorney, exemption from the restrictions of Section 181 BGB, clarification of validity beyond death, internal ranking of several authorized representatives, internal coordination obligation of several authorized representatives, revocation authority (or its exclusion) in the case of several authorized representatives, comprehensive data access, listing of all measures of health care and residence determination, stating the current paragraphs after the change in the law on January 1, 2023.
- In some cases, the templates also contain ambiguous or incorrect provisions, for example a restriction of the power of attorney to the case of precaution in the external relationship, which makes the power of attorney almost unusable in legal transactions.
- Experience has shown that many legal laypersons are by the task of filling out the power of attorney forms correctly and completely overwhelmed.
- In particular, many forms create misunderstandings, by allowing you to select, which areas are to be covered by the power of attorney. If you tick “No” or nothing at all for just one area, the practical usability of the power of attorney is jeopardized. This is because individual or even many legal transactions will often relate to the respective area. In this case, the authorized representative cannot carry out the legal transaction in question. The court must then appoint a guardian for the principal, at least for this legal transaction, which is precisely what the power of attorney should avoid.
- If you only have one copy of the power of attorney notarized, you will no longer have proof of the power of attorney in the event of loss. You can therefore no longer prove that the power of attorney was granted and legal transactions can no longer rely on the existence of the power of attorney. The court must then often appoint a guardian for the grantor of the power of attorney. If, on the other hand, you have a general and health care proxy notarized once, the notary can issue copies of it again and again if necessary. This provides security in the event that the copy is lost or if you have to submit several copies of the power of attorney to different authorities at the same time. If you are authorizing several people anyway, you should have at least one copy of the power of attorney for each authorized representative. This is because there is a particularly high risk of loss if a copy has to be “passed around” among the authorized representatives.
- Only the notarized power of attorney provides full proof that the principal has made the declarations.
Please provide us with the following information to prepare a health care proxy (together with a care directive and, if applicable, a living will):
- Your name, date of birth, address and telephone number
- Names, dates of birth and addresses of all authorized representatives
- With several authorized representatives:
Should the authorized representatives each be able to act on their own behalf (sole power of representation)? If so, should they coordinate internally with another authorized representative beforehand?
Or should the authorized representatives only ever be able to act in pairs or even in threes (joint power of representation)?
This can be safer for you, but you must bear in mind that in an acute case, all authorized representatives must always meet or at least sign before a decision can be made and implemented. This can delay decisions that need to be made quickly.
- Should the power of attorney apply to all areas (standard case) or only to financial matters or only to health and personal matters?
- Should we first send all copies of the powers of attorney to you (as a rule) or directly to your authorized representatives? May we issue further copies of the power of attorney to the authorized representatives without further ado or only against proof that the insured event has actually occurred in your case?
- Would you like to specify a certain order for the authorized representatives, for example, should your spouse/life partner always act first, and only if they are unable to do so, your children?
- If possible, should the authorized representatives consult with another authorized representative before making a decision? Should they also consult with a specific other person (e.g. your trusted doctor) in health matters?
- Would you like your power of attorney to be entered in the Central Register of Lasting Powers of Attorney? (recommended!)
- Should the authorized representatives also be allowed to make gifts on your behalf, i.e. larger gifts such as property or large sums of money? Should such gifts only be possible to your relatives, only to your children/grandchildren, also to the authorized representatives themselves or even to any third parties? Or would you like to restrict the legal power to make gifts to customary gifts of decency and occasional gifts (e.g. Christmas and birthday presents and tips)?
- Should an authorized representative be authorized to revoke the power of attorney of other authorized representatives?
For example, you can give your spouse/life partner the authority to revoke the power of attorney in favor of a child. Your spouse can then revoke the power of attorney if he/she gains the impression that one of your children is not using the power of attorney in your interests.
Please do not hesitate to contact us if you have any questions or would like to make an appointment for a personal consultation!
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