Regardless of age, any of us can find ourselves in a situation due to an accident or illness where we can no longer make decisions for ourselves. Health and severe illness are sometimes closely intertwined – a serious accident or a stroke can lead to a situation where we cannot decide which medical measures we desire and which we do not. With an advance directive (living will), we can make provisions for such life and treatment situations. In this article, we will explain everything you need to know about the topic and provide helpful tips and further sources of information.
Definition of an Advance Directive
An advance directive is the written declaration of an adult, "whether they consent to or prohibit certain examinations of their health status, medical treatments, or medical interventions not yet imminent at the time of declaration" (Paragraph 1901a, Section 1 of the German Civil Code (BGB)).1
Essentially, it is a legal document that allows you to stipulate in advance how and in what manner you wish to receive medical treatments if you are unable to express these wishes yourself.
Early engagement with advance directives is beneficial!
The advance directive is particularly important when it comes to discontinuing life-sustaining measures. In such an exceptional situation, a clear declaration in the advance directive can be an important precautionary measure that also provides relief for family members. By documenting your own wishes regarding the end of life in an advance directive, you can ensure that your will is respected, even if you are no longer able to make decisions.
Creating an Advance Directive
How should an advance directive be formulated?
According to the law, your advance directive should specify concrete situations and medical measures to be effective and legally binding. General descriptions such as "I do not wish for life-prolonging measures" are not sufficient here. Precise and clear formulations are advantageous. Remember that in case of doubt, doctors and your family members decide over life and death. For this reason, your formulations should ideally raise no questions and enable a decision based on your wishes. The following conditions must be met:
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Describe the situations in which the advance directive should apply. For example, "during the immediate dying process."
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Which specific medical measures do you wish for in this situation? For example, "that all medically possible and reasonable efforts be made to keep me alive."
What should it contain?
In any case, an advance directive should contain the following:
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First and last name
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Date of birth
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Address
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Date
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Signature
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At least one example situation for which the advance directive should apply.
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Specific medical measures desired for the stated situation.
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Or specific medical measures not desired for the stated situation.
Text modules, templates & forms
We recommend that you use existing samples and templates when preparing your advance directive. The Federal Ministry of Justice provides corresponding text modules that can help you create an individual document . Furthermore, you have the option to create an online advance directive as well as other provisions on the VorsorgePlaner website. You will be guided step-by-step through the online tool to create a personalized advance directive. If you are unsure, seek professional advice. You can obtain advice from your general practitioner or contact counseling centers such as Unabhängige Patientenberatung Deutschland.
Does an advance directive need to be certified or notarized ?
An advance directive is generally valid without notarization. Nevertheless, there are some advantages to having it certified by a notary or specialist lawyer. They can discuss the formulations with you and ensure precise representation. Furthermore, this increases the acceptance of the advance directive and the certainty that your wishes will be respected. If desired, the notary or lawyer can deposit your individual advance directive with the Central Register of Advance Directives of the German Federal Chamber of Notaries.
Where should the advance directive be kept ?
The advance directive should be kept in a safe but easily accessible place. It is advisable to keep copies of the advance directive in several locations, such as at home, with your family doctor, at the hospital, or with trusted individuals.
It is also important that the persons who would decide on medical treatment in an emergency are informed about the existence and location of the advance directive. These could be family members, friends, or treating physicians, for example.
You can also register the advance directive in a public register. This can ensure that the advance directive is quickly found and considered in an emergency.
How long is an advance directive valid?
The validity of an advance directive depends on various factors. Generally, an advance directive is valid indefinitely, as long as it is not revoked or amended .
However, it is advisable to regularly review and, if necessary, update the advance directive to ensure that it still reflects one's wishes and ideas. Especially in the event of changes in health status or personal circumstances, it may be useful to adjust the advance directive.
However, revocation and changes are only possible if you are capable of giving consent at that time. This means you must be able to understand the meaning and potential risks of a medical measure.
Is the advance directive legally binding?
If the specific life and treatment situation described in your advance directive matches the current situation, the advance directive is binding for all involved parties, such as relatives, caregivers, doctors, nursing staff, justice, and proxies.
However, there are exceptions, particularly in acute emergency situations. Should a delay in medical measures have severe consequences, such as death, the attending physician will act immediately and take all medically reasonable measures, provided that no contrary wish on your part is documented for the specific acute situation.
Making provisions for emergencies with an advance directive.
What does an advance directive cost?
The costs for an advance directive can vary depending on the method of creation and the consultation that accompanies it. There are various ways to create an advance directive.
If you opt for one of the recommended templates or the online advance directive, there will be no costs for you. However, it is advisable to inform yourself sufficiently beforehand about the content and legal framework of the advance directive. Various organizations and associations offer cost-effective consultations and assistance in creating advance directives.
It is also possible to seek advice from a lawyer or notary and have the advance directive prepared by them. In this case, costs may arise, which depend on the individual consultation time and the fees of the lawyer or notary.
Regardless of the associated costs, an advance directive is an important component of precautionary planning and significantly contributes to ensuring that one's wishes and ideas regarding medical treatment are considered even in the event of a severe illness or injury.
Advance Directive and Power of Attorney for Healthcare
In addition to the advance directive, the power of attorney for healthcare is a very important precautionary document. With it, you authorize a person to make decisions on your behalf.
In contrast to the power of attorney for healthcare, which authorizes a person to act on your behalf if you are unable to make decisions yourself, an advance directive provides instructions on how to proceed in medical matters if the person is no longer capable of making decisions.
It is important to note that a power of attorney for healthcare and an advance directive can be combined . This allows you to ensure that your wishes and interests are considered in both medical and other matters if you are unable to make or communicate decisions yourself.
No advance directive – who decides?
If you have a power of attorney for healthcare, your authorized representative can act for you. However, this is only possible if you have included the appropriate clause "Power of Attorney for Healthcare Matters." If neither an advance directive nor a power of attorney for healthcare exists, a court will first appoint a guardian for you. This person will determine your "presumed will" (Paragraph 1901a, Section 2 of the German Civil Code (BGB))1 by inquiring with your relatives and family doctor about how you have expressed yourself on various topics, such as life-sustaining measures.
Emergency right of representation for spouses
From January 1, 2023, spouses can represent each other in medical emergencies for a maximum of six months, even without a valid health care proxy or living will.
However, it is important to note that the decisions of relatives do not necessarily have to correspond to the wishes of the affected person. Therefore, if you want to ensure that your wishes regarding your medical treatment are respected in an emergency, you should create a living will or a health care proxy and ensure that your relatives and medical caregivers are informed about it.
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