Severe accident, stroke or heart attack – suddenly you can no longer make decisions for yourself. Who will then take care of pending decisions, who will conclude a contract with a nursing home? Neither friends nor relatives have the right to make decisions or act on your behalf without a special power of attorney. If the corresponding power of attorney is missing, the probate court appoints a supervisor, who may not be a relative.
Many people fear that if they become unable to make decisions, a stranger appointed by the court will be assigned to them, who will then determine their life. This can be prevented with an advance directive (Vorsorgevollmacht). However, this power of attorney must be drawn up early, while the person concerned is in full possession of their mental faculties and is still "legally competent" in the legal sense¹.
Definition Advance Directive (Vorsorgevollmacht)
With an advance directive (Vorsorgevollmacht) , you, as the grantor, designate another person of your trust who, in the event of incapacity to make decisions, may make legal decisions, conclude contracts, and act in your best interest on your behalf.
How is an advance directive drawn up?
An advance directive must be in writing and should be formulated as precisely and concretely as possible. You can individually determine in which matters you wish to be represented.
Advance Directive - Plan ahead to be secured in unexpected situations.
In an advance directive, you can designate one or more persons who are authorized to represent you in specific matters. As the grantor, you must provide your full name, address, and date of birth. The same applies to the authorized representative, i.e., the person you have designated. Finally, you should include the date and your signatures. While the authorized representative's signature is not a prerequisite for the validity of the advance directive, it is still advisable. You should also inform the person about the advance directive to clarify any questions. Furthermore, if the power of attorney is not notarized, we recommend that you renew your signature every few years. This way, you can ensure that your wishes are respected in the event of a serious illness or advanced age.
What is regulated in an advance directive ?
It is important that you consider in advance which areas and tasks you wish to entrust to the authorized person. Here are some examples of areas in which you can be represented by an authorized person:
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Healthcare: The authorized person can make decisions for you in medical matters, such as choosing the treating physician, the type of treatment, or consenting to an operation.
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Property management: The authorized person can act for you in financial matters, such as managing bank accounts, processing payments, selling property, or managing assets.
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Housing matters: The authorized person can make decisions regarding housing, such as choosing a nursing home or terminating a rental agreement, and can obtain the right to determine your place of residence.
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Mail: The authorized person can manage your correspondence, such as receiving and reading letters.
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Administrative matters: The authorized person can clarify administrative matters on your behalf, such as applying for social benefits, representing you before the tax office, and especially in matters concerning health and long-term care insurance.
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Other matters: Individual arrangements can be made in the advance directive, such as representation in family matters.
Who can be appointed as an authorized representative ?
In principle, you can empower any person you choose. You do not have to be related to them. Make sure that the authorized representative(s) should ideally live nearby. Certain decisions, such as consenting to or refusing medical measures, require quick action. It is also possible to appoint several authorized representatives for different areas.
Caution when empowering several people! Unfortunately, disagreements often arise, and the care can be jeopardized as a result. For example, it may happen that the daughter (responsible for finances) does not provide enough money to the son (responsible for health and care) for the care of the elderly parent in need of care. To avoid this, it is best to empower only one person.
Where should the advance directive be kept ?
There are various ways to store an advance directive. However, it is particularly important that the authorized representative knows where the document can be found.
One option is to keep the power of attorney at home, for example, in a clearly labeled folder in a safe place in your home. It is advisable to also store other precautionary documents, such as a living will , in this folder.
Another option is to deposit the advance directive with a notary to ensure that the document is not lost. The authorized representative receives a copy from the notary, which they can use. The Central Register of Enduring Powers of Attorney (Zentrales Vorsorgeregister) offers the possibility to register an advance directive. The costs for this start from approx. €20.
Validity with or without a notary?
In principle, a correctly completed advance directive is valid even without a notary. In some cases, however, notarization may be advisable. Especially for potential banking transactions or real estate ownership, you should consider notarization.
Advantages and disadvantages of an advance directive
It is important to consider the potential disadvantages of an advance directive, especially if you do not have anyone you trust or if you do not want a relative to take on this responsibility. There are therefore also reasons why you might decide against an advance directive. Granting a power of attorney avoids a court-appointed guardian, which means that there is no official control over the authorized representative.
Advantages
An advance directive offers numerous advantages. A major advantage is that you can decide for yourself who can make decisions for you if you become unable to act. You can also appoint several people, thus ensuring that your affairs are handled by trusted individuals.
Another advantage is that the power of attorney can be revoked at any time. Should your circumstances change or you lose trust in the authorized representative, you can withdraw the power of attorney and appoint a new representative. Furthermore, you have the option to determine which areas of life are to be handed over to whom. For example, you can specify that one person is responsible for your finances, while another person takes care of your medical matters.
A major advantage of an advance directive is also that the authorized representative can react immediately in an emergency. Unlike in guardianship proceedings, a court decision does not have to be awaited before action can be taken. With an advance directive, you are spared the need to go through the guardianship court. This saves you time and costs that would arise in guardianship proceedings. In addition, court supervision is no longer necessary, which some people find to be a positive aspect.
Disadvantages
An advance directive can also have disadvantages. For example, the control of the guardianship court over the authorized representative is eliminated, which entails a certain risk of abuse. The authorized representative also assumes a high degree of responsibility for you and your decisions. Without notarization, no banking or real estate transactions are possible, which can be problematic in some cases.
Text modules, templates & forms
To avoid errors when creating an advance directive, it is advisable to use a template or sample as a guide. The Federal Ministry of Justice (BMJ) , for example, provides a free sample online that can be used as a basis. With this template, you can ensure that no important points are forgotten. After you have printed out the sample, you can fill it out and sign it. It is advisable to take sufficient time and to formulate the advance directive as detailed as possible. This can avoid misunderstandings and ambiguities.
No advance directive – who decides?
If you have an advance directive, your authorized representative can act on your behalf. However, only if you have included the corresponding clause "advance directive in healthcare matters." If neither a living will nor an advance directive exists, a court will first appoint a guardian for you. This person will ascertain your "presumed will" (Paragraph 1901a Section 2 BGB)1 by inquiring with your relatives and your family doctor about how you have expressed yourself on various topics, such as life-sustaining measures.
Right of emergency representation for spouses
As of January 1, 2023, spouses can also represent each other in medical emergencies for a maximum of six months , even without a valid advance directive 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 person concerned. 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 an advance directive and ensure that your relatives and medical caregivers are informed about them.
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