Living will, Durable power of attorney and appointment of custodian in Germany

Living will, Durable power of attorney and appointment of custodian in Germany

German law provides for three types of instruments that can be used to make legal arrangements in relation to age and illness:

  • Durable power of attorney (Vorsorgevollmacht)
  • Living will (Patientenverfügung)
  • Nomination of custodian (Betreuungsverfügung)

Living will in Germany

A living will (also referred to as advance directive, health care directive, or a physician`s directive) provides an individual with the ability to express his or her wishes regarding prolonging life in the case of incapacitation through medical treatments and devices. Upon the occurrence of such incapacitation, the custodian (Betreuer) must examine whether such wishes correspond to the living and treatment conditions present at that time. If the conditions are inconsistent with the individual’s wishes, the custodian (Betreuer) must make sure that the physician follows the wishes of the individual who is incapacitated. The attending physician and the custodian must examine which medical treatments are appropriate based on the patient’s wishes and overall condition and prognosis. If the attending physician and the custodian disagree, the court of protection (Betreuungsgericht) must determine what course of action is appropriate. See § 1904 BGB. Should the living will be unclear as to what treatment is appropriate in such a situation, the court of protection will interpret the living will and determine what course of action would be consistent with the individual’s intentions(presumed wishes).

Please note: In order to avoid any problems the living will should be clear, detailed and anticipate possible complications. 

A living will does not expire or become time barred. Nevertheless, a living will should be reviewed regularly so that the patient's wishes are current.  Such review will also clarify the intentions of the individual should it become necessary for the custodian and treating physician to assess the document. 

A living will may be filed with the Federal Chamber of Notaries in Germany. However, since medical personnel are not privy to such information, individuals should consider carrying some form of notification (e.g. a card that can be carried in one's wallet) regarding the existence of the living will.

Durable Power of Attorney in Germany

The extent of a living will is limited to medical treatment and devices and may be unclear or inapplicable in certain unanticipated situations. Accordingly, it is advisable to grant a person a durable power of attorney (Vorsorgevollmacht) to ensure that even after the principal becomes incapacitated, he can make legally binding declarations. The durable power of attorney generally includes broad powers (Generalvollmacht), e.g. to make a contract, waive rights or represent the principle in court. However, the extent of such powers can be limited as the principal sees fit. The principal can authorize one or more individuals to act on his behalf. It is also possible to appoint an additional representative to supervise the other appointed representatives.

Generally, no form is required and the durable power of attorney can also be given orally. However, certain powers (e.g. the power to sell immovable) are only effective if the instrument is signed in front of a German Notary (Notar) or equivalent (e.g. German Consul).

A durable power of attorney may be revoked at any time as long as the principal is legally competent (§§ 168, 671 BGB).

Generally, a custodian will not be appointed by the court of protection if a valid durable power of attorney exists. However, the court of protection may appoint a supervising custodian if it deems it necessary. For example, a supervising custodian might become necessary if certain aspects are not covered by the durable power of attorney or because there is reason to mistrust the Person who holds the durable power of attorney. The supervising custodian generally has the power to revoke the durable power of attorney and is a common occurence.

The attorney must comply with the wishes of the principal as expressed in the living will (Patientenverfügung). 

Nomination of a Custodian under German Law 

A custodian (also referred to as as deputy, representative or legal guardian) is appointed by the court of protection (Betreuungsgericht) to care of the affairs of a person of full age in so far as this is necessary. To the extent that this is necessary to prevent a substantial danger for the person or the property of the person under custodianship, the court of protection can order that the person under custodianship requires the consent of the custodian for certain judicial acts (Einwilligungsvorbehalt). 

A person may determine who should be the court appointed custodian (Betreuer) and who should never be appointed as guardian (Betreuungsverfügung). Regardless, the court of protection ultimately appoints the guardian.

The nomination of a custodian (Betreuer) is generally combined with a durable power of attorney (Vorsorgevorsorgevollmacht) or living will (Patientenverfügung).

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