Precautionary power of attorney and health care directive

Everyone wants to freely dispose what they have created and worked for. This also includes the arrangement of the estate by means of making a last will or entering into a contract of inheritance. But what about your own life? Who gets to decide, should one no longer be able to do so, how and where one will be medically treated or cared for after an accident, in case of illness or in old age? Who shall manage your assets, take care of your banking transactions and make decisions for you in your stead? You can keep control of your life even in such cases - if you make your own "penultimate" will in good time.

Any adult who is no longer capable of managing their own affairs – either wholly or in part – is assigned a court-appointed guardian by statute. By granting a precautionary power of attorney to a person you trust and, thus, authorising him or her to act in your place, you can prevent such guardianship and any involvement of the court – in accordance with your wishes in almost all property and personal areas.

You alone determine to which extent the precautionary power of attorney is granted. For example, representation can be limited to matters of property law or to joint exercise with another person. In particular, the following matters can be regulated:

  • conclusion of contracts,
  • managing assets,
  • taking care of banking transactions,
  • receiving and opening mail,
  • obtaining comprehensive information from doctors in the event of illness,
  • decisions on whether and which examinations and medical treatments are to be carried out,
  • decisions on the termination of life-prolonging measures,
  • decisions on organ donation.

The representative can only act effectively on your behalf once they receive an official copy of the precautionary power of attorney from you. You alone determine the right moment for this occasion.

In order to ensure that the precautionary power of attorney is recognised without restriction, it should be notarised. Only public certification allows its usage for matters that require an entrance in the land register. A notarised precautionary power of attorney is accepted by banks since the identity and legal capacity of the principal are controlled by the notary. For consumer loans, notarisation is mandatory in certain cases. Individual advice and legally precise wording are also included with the notary.

Without a precautionary power of attorney, statutes prescribe the assignment of a guardian by the court in case of need. If you do not want to leave the selection of a guardian up to the court, but prefer to rely on someone you trust, you can propose a specific person to be chosen as guardian, should the need arise. If there are no substantial reasons against assigning this person, the court will follow your suggestion. In addition, you can define wishes in this decree as to how your care should be carried out. In principle, your guardian must abide by these – unless the instructions are against your best interests.

In any case, this guardian is controlled by the court – unlike with precautionary power of attorney – and needs the court's approval for some legal transactions.

Your right to a self-determined life also extends to situations in which you are incapable of making decisions by yourself, for example as a result of an accident. In such cases, a health care directive may be relied upon. In such directive, you specify in writing whether and how you would like to receive medical treatment under certain circumstances. This way, you preserve your right to self-determination and can decide which life-sustaining or life-prolonging measures will be taken for you, because doctors are in principle bound by your will.

The health care directive applies in particular to the following scenarios:

  • It comes into effect when you can no longer express your will yourself.
  • Instructions are generally binding for doctors, representatives authorised by a precautionary power of attorney or guardians.
  • In contrast to a precautionary power of attorney, it only contains instructions to doctors who will treat you.
  • In the event of dissent between doctors and the representative or guardian, the court will decide in accordance with the patient's will laid down in the health care directive.

If you are concerned about your future and want to ensure that your will takes precedence, there is no either/or when deciding to make use of a precautionary power of attorney and health care directive. Because one does not replace the other.

In a precautionary power of attorney, you determine who can make which decisions for you in case of need. In the health care directive, you define your specific treatment wishes for scenarios in which you can no longer express your will yourself. Therefore, a precautionary power of attorney and a health care directive should be combined in order to ensure that the representative is both bound by your wishes and authorised to carry them out.

The internet has become the primary source of information for almost all aspects of life. For many questions users confidently turn to the world-encompassing community. But caution is advised when using standardised forms and model contracts from the internet. The notary public will provide a tailor-made contract which takes into account the specific facts of the case.