What do I need a power of attorney for?
Lasting powers of attorney are established in the event that the principal is no longer able to manage their personal and financial affairs themselves, for example due to an accident, illness or old age. The authorised representative should then take care of the principal's affairs.
The power of attorney is usually granted for the purpose of avoiding the appointment of a guardian by the guardianship court. If there is no power of attorney, the competent guardianship court will appoint a guardian to manage the personal and financial affairs of the person concerned. The guardianship court usually tries to appoint the spouse or a relative as the guardian. However, the court can also appoint a professional carer, i.e. a third party, if the court doubts the suitability of the spouse or relative, for example.
Is an authorised representative monitored by the court?
Unlike an authorised representative, a guardian is subject to control by the guardianship court. In this respect, a guardian may also offer more protection against abuse than a power of attorney.
In individual cases, the appointment of a guardian may be unavoidable despite an existing power of attorney. For example, there are cases in which it is not legally possible to act on the basis of a power of attorney. This is the case, for example, when an inheritance is disclaimed. If it makes sense to disclaim an inheritance due to over-indebtedness, this can only be done by a guardian appointed by the guardianship court. However, the guardianship will usually be limited to the settlement of this individual matter. For this reason, a declaration is also included in the power of attorney that the authorised representative should also be appointed as a guardian for these special cases. However, this declaration is not binding on the court.
Does the power of attorney only apply if I can no longer manage my affairs?
In the external relationship, it is advisable not to make the power of attorney subject to the condition that the insured event has already occurred. As a rule, the authorised representative should only make use of the power of attorney in this case. However, such a restriction would have the considerable disadvantage vis-à-vis a third party that the third party (e.g. public authority, bank or other contractual partner) is usually unable to check whether the insured event has occurred. Unless the third party wishes to take a very considerable risk, they would have to refuse to enter into a transaction with the authorised representative or reject a declaration from them. The health care proxy would then lose its purpose.
The above means that issuing a power of attorney for healthcare is associated with an extraordinarily high risk, as declarations and dispositions made by the authorised representative to the detriment of the principal on the basis of such a power of attorney are generally effective, even if the authorised representative has exceeded their internal powers, and the principal must accept them. This also applies, for example, if the authorised representative makes use of the power of attorney even though the insured event has not yet occurred. For example, the authorised representative can dispose of the account of the principal immediately after granting the power of attorney, he can sell and transfer assets and, if necessary, also dispose of or encumber real estate.
For this reason, such a far-reaching power of attorney should only be granted to those persons who enjoy the full confidence of the principal.
Is the authorised representative liable for his actions?
The power of attorney itself regulates which competences the authorised representative has in the external relationship with third parties such as authorities, banks and contractual partners. This must be distinguished from the legal relationship between the principal and the authorised representative on which the power of attorney is based („internal relationship“). In other words, the power of attorney regulates what the authorised representative can do. The basic relationship determines what the authorised representative may do.
The basic relationship can and should be regulated in writing in a separate deed. This is often waived between spouses. However, the regulation of the basic relationship is also particularly important for the authorised representative. This is because the authorised representative may be liable if they are responsible for any damage caused to the principal as a result of their activities. It is therefore in the interests of the authorised representative to limit his liability. The authorised representative is also obliged to render account to the principal or, if applicable, to the principal's heirs, i.e. in particular to provide evidence of all expenses and income, which can be difficult depending on the duration of the activity. The authorised representative, who has usually only looked after the interests of the principal on the basis of family or friendly ties, may then be exposed to claims from the heirs.
What is the difference between a health care proxy and a living will?
A living will must be distinguished from a health care proxy or general power of attorney. In legal terms, these two regulations have little to do with each other. Nevertheless, health care proxies are often drawn up together with living wills.
A living will is a precautionary directive in the event that you are unable to consent to or refuse medical treatment or nursing care at a time when it is imminent. A living will is binding for all parties involved (e.g. carers, authorised representatives, doctors, nursing staff, courts), provided that it clearly expresses your wishes for a specific treatment situation.
Should a living will be renewed from time to time?
We would like to point out that this clear recognisability may be lacking under certain circumstances if the will is already very old and was made in a life situation that no longer corresponds to the current situation. The will may also not be clearly recognisable if, for example, only empty phrases were chosen.
It is advisable to renew or confirm a living will at certain intervals (e.g. annually). In this way, you can regularly check in your own interest whether the stipulations you have made should still apply or whether they should be concretised or amended.
Where should a living will be kept?
A living will should be stored in such a way that your doctors and authorised representatives in particular can obtain knowledge of the existence and storage location of a living will as quickly and easily as possible. To this end, it may be useful to carry a note with you stating where the living will is kept. If you are admitted to a hospital or nursing home, you should refer to your living will.