Precautionary statements

Advance directives such as the living will, power of attorney and care directive are important: without such declarations, relatives are often powerless if a relative is no longer able to act from one second to the next due to a sudden illness (heart attack, etc.) or an accident.

Advance directives can be used to ensure that in the event of one’s own inability to act, necessary decisions can be made and implemented by self-appointed trusted persons.

Emergency case or emergency folder – also with precautionary statements

The various legal precautionary statements should be stored in such a way that authorized persons can find them (in good time) if necessary. To do this, it is advisable to summarize the most important legal statements in a kind of “emergency case” or emergency folder.

Which statements and instructions are included can be determined individually. However, an emergency case or emergency folder should at least

• a living will
• a power of attorney (or alternatively a care directive) and
• a will / inheritance contract

In addition, it is particularly recommended

• the establishment of separate account powers of attorney and
• an overview of important contracts (e.g. loans, rental agreements, etc.) and
• digital access data for the digital legacy

to be included in the emergency kit or folder.

Power of attorney for health care

A power of attorney for health care is usually a general power of attorney for the benefit of one or more trusted persons.

As soon as the power of attorney is handed over, authorized persons have extensive options for action in place of the person who can no longer represent their own interests. The immediate validity has the advantage – especially between close relatives – that the authorized person can also act in the event of a dispute about the health or mental state of the person concerned.

However, the power of attorney for health care is a very extensive legal authorization. At the same time, a power of attorney for health care – unlike a court-appointed guardian – is generally not subject to judicial control and has significantly greater scope for action. Anyone who wants to create a power of attorney for health care should therefore carefully consider who should have such extensive powers in the event of their own incapacity to act.

In particular, entrepreneurs who run their own company or hold significant shares in a company should also create a power of attorney for business and add it to their emergency kit or folder.

Care directive

The alternative to a power of attorney is a so-called care directive. This determines who the care court should appoint as legal guardian if necessary. This makes it possible to prevent the care court from appointing a stranger, i.e. a professional guardian, as guardian. Unfortunately, in practice it is mostly the case that professional guardians manage a large number of care cases at the same time and therefore have little time available for individual care recipients. At the same time, a professional guardian often does not know the wishes and ideas of the person being cared for and therefore often makes decisions that do not correspond to the actual wishes of the person being cared for or their relatives. This can lead to great frustration and exhausting legal disputes, especially for relatives.

If a care directive exists, however, the named person is usually appointed as guardian. If a care case arises, the guardian then makes decisions in all personal and financial matters – and ideally in the interests of the person being cared for. This primarily concerns questions of residence and medical treatment, but also financial matters (payment obligations from contracts, etc.).

A care directive therefore also has far-reaching legal consequences. It should be drawn up if there is no trusted person available who you would like to entrust with the extended powers of a power of attorney.

The care directive has one “advantage” over a power of attorney: a court-appointed guardian is subject to the supervision of the guardianship court and must submit an annual account to the guardianship court. And yet the choice of guardian should also be made carefully. Of course, supervision by the guardianship court can also have a deterrent effect on the desired guardian and the associated bureaucracy can prevent him from taking on the role.

Living will

With a living will, you can specify in concrete and binding terms what medical treatment or non-treatment you want if you are no longer able to make or express a decision yourself. As a rule, living wills are primarily aimed at refraining from life-prolonging measures in hopeless treatment situations in order to enable a “death with dignity”.

When drawing up a living will, it should be noted that the Federal Court of Justice has pointed out in several decisions since 2016 that a sufficiently concrete treatment decision is a prerequisite for an effective living will.

It is therefore sensible to have an older living will checked to see whether it meets the requirements of current case law. Otherwise, there is a risk that a living will is ineffective. For example, the blanket statement that you do not want “any life-sustaining measures” is insufficient in itself.