The likelihood of developing Alzheimer's or another form of dementia increases with age. In Germany, the proportion of people with dementia is now just over 1,600 per 100,000 inhabitants, and the trend is rising.
According to a recent study, this proportion is likely to double within the next thirty years.
Many people are therefore concerned with the question of what legal precautionary measures need to be taken to protect themselves in the event of their own incapacity to act.
The creation of so-called health care proxies, care directives or living wills to safeguard one's own future is therefore becoming increasingly important.
The drafting of such a document is therefore necessary to ensure a certain degree of self-determination in the event of one's own incapacity to act.
If, for example, there is no health care proxy or care directive, the care court (before 1 September 2009 the guardianship court) can arrange for the appointment of a legal guardian or a care association.
A.) Healthcare proxy
With a health care proxy, you appoint a person you trust to act on your behalf if you are no longer able to make important decisions due to illness or the need for care.
In such a power of attorney, you can also exclude people you do not trust from the provision of care.
Such powers of attorney often authorise "representation in all matters". Even if this initially gives the impression that all important decisions of the authorised representative are covered, this is not the case.
This is because the following matters, for example, require an express provision in the power of attorney:
- Consent of the authorised representative to a medical examination, medical treatment or medical intervention if there is a risk to the life of the person granting the power of attorney or if serious, prolonged damage to health is to be expected.
- Consent of the authorised representative to the omission or termination of life-prolonging measures.
- Consent of the authorised representative to organ donation by the person granting the power of attorney.
- Consent of the authorised representative to a closed placement of the principal or to another measure that restricts freedom
It should also be noted that, despite authorisation, some of these matters still require the approval of the guardianship court.
It is therefore generally advisable to relate the power of attorney to the most important areas of responsibility and to regulate these as precisely as possible.
Important areas of responsibility are, for example: property matters, health care matters, matters relating to residence, other personal matters, representation at public offices, etc.
Especially if the grantor has extensive assets, the power of attorney should be drafted as carefully as possible to prevent misuse or subsequent inheritance disputes.
Of course, you can also grant different powers of attorney to different people, for example to assign representation in property matters to a person who is particularly knowledgeable in this area.
The health care proxy is generally valid until the death of the principal, unless it is revoked beforehand by the principal.
The power of attorney should be kept in an easily accessible place that is also known to the authorised representative.
It is also advisable to carry a note in your wallet or handbag to make the existence of the power of attorney known in the event of an accident or similar.
Of course, the power of attorney can also be handed over to the authorised representative before the need arises or deposited with the register of authorised representatives.
In order to avoid disputes about the authenticity of the signature, a power of attorney can also be publicly certified by the guardianship authority.
B.) Care directive
As mentioned above, the guardianship court can, if necessary, appoint a legal guardian or a guardianship association for sick or disabled people.
If the person in need is still capable of being heard, he or she will be heard by the court about the intended appointment.
However, it is also possible to make advance arrangements in a so-called care directive as to who should be considered as a legal carer for your own care.
In this case, the court is bound to the person named in the care directive if necessary.
Here, too, it is of course possible to exclude certain persons from the support.
The difference between the care directive and the health care proxy is that the caregiver is selected by the person to be cared for, but the caregiver is only appointed and thus authorised by the care court. In addition, the carer is also supervised by the care court and is only able to act after appointment and not immediately.
C.) Living will
A living will can be used to regulate which medical measures should be applied or omitted in relation to your own person.
The living will should therefore contain as precise a description as possible of which medical and nursing measures should be carried out or omitted (for example, the omission of a PEG tube (feeding tube) as a life-prolonging measure).
Due to the large number of legal problems and uncertainties, it is essential to seek medical and legal advice before drafting any of the documents described.
This is particularly necessary in the case of wealthy persons, as disputes can often arise between the heirs as to whether an heir's asset management with regard to the deceased's assets is or was carried out properly.
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.
