What is a health care proxy, guardianship order, and living will?
A power of attorney is a written declaration in which someone authorizes another person to make decisions on their behalf in certain areas of life. The power of attorney can be granted for financial matters, moving house, or medical treatment, for example. It is required when the person concerned is no longer able to make decisions for themselves. A guardianship order serves to appoint a person to care for the person concerned in the event of a restriction of self-determination.
A living will, on the other hand, is a written statement in which a person sets out their wishes regarding medical treatment in the event that they are no longer able to express them themselves. It is important to consider these issues and take appropriate measures so that you are well prepared in an emergency.
Why are a health care proxy, guardianship order, and living will important?
In today's society, it is important to make provisions for the event that you are no longer able to make decisions for yourself due to age, illness, or accident. There are three important instruments for this: the power of attorney, the guardianship order, and the living will.
A power of attorney is a written declaration in which someone authorizes another person to make decisions on their behalf in certain areas of life. The power of attorney can be granted for financial matters, moving house, or medical treatment, for example. It is required when the person concerned is no longer able to make decisions themselves, for example due to dementia or other illnesses.
A guardianship order serves to appoint a person who is to care for the affected person in the event of a restriction of self-determination. This may be the case, for example, in the event of mental illness or intellectual disability. The guardian then has the authority to make decisions in various areas of life, such as financial or medical matters.
A living will, on the other hand, is a written statement in which a person sets out their wishes regarding medical treatment in the event that they are no longer able to express them themselves. These wishes may be general in nature, but they may also relate to specific treatments. It is important that the living will is worded as precisely as possible in order to prevent misunderstandings.
It is important to address these issues and take appropriate measures to be well prepared in case of an emergency. No one knows what the future holds, so it is important to make provisions for the event that you are no longer able to make decisions for yourself. This way, you can ensure that your wishes and ideas are taken into account when necessary and that you can live independently for as long as possible.
In addition, disputes within the family can arise in an emergency if no clear arrangements have been made. By drawing up a power of attorney, guardianship order, and living will, you can spare yourself and your relatives a great deal of stress and uncertainty.
However, it is important to note that the creation of these documents is voluntary and no one can be forced to do so. It is the responsibility of each individual to deal with this issue and take appropriate measures. It is also possible to seek professional help, for example from a notary or lawyer, to ensure that the documents are legally valid and effective.
It is advisable to address these issues early on and take appropriate measures to ensure that you are well prepared in case of an emergency. This will ensure that your wishes and preferences are taken into account when needed and that you can live independently for as long as possible.
What is a health care proxy?
A power of attorney is a written declaration in which someone authorizes another person to make decisions on their behalf in certain areas of life. The power of attorney can be granted for financial matters, moving house, or medical treatment, for example. It is required when the person concerned is no longer able to make decisions themselves, for example due to dementia or other illnesses.
Who can grant power of attorney depends on the respective legal regulations of the country. As a rule, however, any adult with legal capacity can grant power of attorney. It is also possible to appoint several authorized representatives who then make decisions jointly.
You can appoint a trustworthy person as your representative, such as a relative or friend. It is also possible to appoint a professional, such as a notary or lawyer, as your representative. However, the representative must be legally competent and must not have any conflicts of interest.
The authorized representative has the power to make decisions in the areas of life covered by the power of attorney. It is important that the power of attorney is worded as precisely as possible in order to prevent misunderstandings.
The power of attorney for healthcare must be drawn up in writing and certified by a notary. It comes into effect as soon as the person concerned is no longer able to make decisions.
A power of attorney can be revoked at any time as long as the person concerned is still legally competent. It is sufficient to formulate the revocation in writing and hand it over to the authorized representative or the notary who certified the power of attorney. It is also possible to draw up a new power of attorney to replace the old one.
What is a guardianship order?
A guardianship order is a written declaration in which a person appoints another person as guardian to care for them in the event that they become unable to make decisions for themselves. This may be the case, for example, in the event of mental illness or intellectual disability. The guardian then has the authority to make decisions in various areas of life, such as financial or medical matters.
Who can draw up a guardianship order depends on the respective legal regulations of the state. As a rule, however, any adult with legal capacity can draw up a guardianship order. It is also possible to appoint several guardians who then make decisions jointly.
A trusted person, such as a relative or friend, can be appointed as guardian. It is also possible to appoint a professional, such as a notary or lawyer, as guardian. However, the guardian must be legally competent and must not have any conflicts of interest.
The guardian has the authority to make decisions in the areas of life covered by the guardianship order. It is important that the guardianship order is worded as precisely as possible in order to prevent misunderstandings.
The guardianship order is drawn up in writing and must be certified by a notary. It comes into effect as soon as the person concerned is no longer able to make decisions.
A guardianship order can be revoked at any time as long as the person concerned is still legally competent. It is sufficient to formulate the revocation declaration in writing and hand it over to the guardian or the notary who certified the guardianship order. It is also possible to draw up a new guardianship order to replace the old one.
What is a living will?
A living will is a written statement in which a person sets out their wishes regarding medical treatment in the event that they are no longer able to express them themselves. These wishes may be general in nature, but may also relate to specific treatments. The purpose of a living will is to document a person's own ideas and wishes in the event of serious illness or an accident and to ensure that these are taken into account.
A living will is needed if you are no longer able to make decisions about your medical treatment in the event of a serious illness or accident. This may be the case, for example, if you suffer from clouding of consciousness, dementia, or another illness.
Any adult with legal capacity can draw up a living will. It is also possible to draw up a living will for another person, for example for a minor child or a relative in need of care. In this case, however, the person concerned must give their consent and must not object to the living will.
A living will should be worded as precisely as possible to prevent misunderstandings. It should contain the following information:
- A declaration that the living will shall apply in the event of impaired decision-making capacity
- Personal details of the declarant, such as name, date of birth, and address
- Information about caregivers, for example relatives who should be notified in an emergency
- Information about medical treatment preferences, such as specific treatments or therapies that should be refused, or specific medical measures that should be performed
- Information on who is authorized to interpret and implement the living will
The living will is drawn up in writing and should be signed by two witnesses. It is advisable to give a copy of the living will to your family doctor or notary so that it is quickly available in an emergency. The living will comes into effect as soon as the person concerned is no longer able to make decisions.
A living will can be revoked at any time as long as the person concerned is still legally competent. It is sufficient to formulate the revocation in writing and hand it over to the witnesses or the notary who certified the living will. It is also possible to draw up a new living will to replace the old one.
It is important to address the issue of living wills at an early stage and to take appropriate measures to be well prepared in an emergency. This ensures that your wishes and preferences regarding medical treatment are taken into account when needed. However, it is important to note that a living will does not constitute a general power of attorney and therefore does not apply to other areas of life. In order to make provisions for other areas of life in the event of a restriction of decision-making capacity, it is possible to draw up a power of attorney or a guardianship order.
It is also advisable to discuss your living will regularly and amend it if necessary to ensure that it always reflects your current wishes. This ensures that your own ideas and wishes are taken into account in an emergency and that you can act independently.
A further article on the costs of living wills can be found here: How much does a living will cost?
Why can a bank power of attorney be useful?
A bank power of attorney can be useful for managing financial affairs in the event of illness, accident, or absence. If someone is unable to manage their own banking affairs, an authorized representative can access their account and carry out transfers, standing orders, or other financial transactions under a bank power of attorney. A power of attorney for banking can also be useful for managing affairs in the event of the account holder's death before the estate is distributed -Power of attorney for banking: contents, advantages & template. It is important to note that a power of attorney for banking only applies to financial matters and does not include decisions regarding medical or other personal matters. It is advisable to only grant a bank power of attorney to a trustworthy person and to obtain comprehensive information about the possible consequences before granting it.
What is the difference between a guardianship order and a living will?
The guardianship order and the living will differ in terms of their focus and legal significance. A living will deals exclusively with medical issues and regulates the handling of medical measures if the author is no longer able to make decisions for themselves due to illness or accident. A guardianship order, on the other hand, concerns legal representation and regulates who should handle legal matters in the event of a need for care and how the care should be organized. The guardianship order may also concern medical issues if these need to be regulated within the scope of legal representation.
A living will is therefore a special form of advance directive that deals exclusively with medical issues. However, both directives aim to ensure that the author's wishes are respected and that the right decisions are made in the event of illness or accident. It is advisable to draw up both directives in order to be fully prepared for an emergency.
Which is more important: a power of attorney or a guardianship order?
It is not possible to say in general terms whether a health care proxy or a guardianship order is more important, as both orders have different focuses and can come into play in different situations.
A power of attorney concerns legal representation and regulates who should manage legal affairs in the event that the author is unable to make decisions. In this case, the authorized person can also make medical decisions, provided that this is specified in the power of attorney. A power of attorney is therefore particularly relevant for people who want to ensure that, in the event of illness or accident, their affairs are managed in accordance with their wishes and that their wishes are respected.
A guardianship order, on the other hand, concerns legal representation in the event of a need for care. Here, the author specifies who should handle legal matters in the event of a need for care and how the care should be organized. A guardianship order can also cover medical issues if these need to be regulated within the scope of legal representation.
It is advisable to draw up both a power of attorney and a guardianship order in order to be fully covered in the event of incapacity to make decisions. It is important to review the orders regularly and adjust them if necessary to ensure that they reflect your current wishes and needs.
Which takes precedence: a living will or a health care proxy?
If both a living will and a health care proxy are in place, the living will generally takes precedence, as it specifically relates to medical decisions. This means that if the living will contains clear instructions regarding medical treatment in the event of illness or accident, these instructions must generally be followed by the treating physicians.
A power of attorney, on the other hand, refers to general legal representation, which may also include medical decisions, provided this is expressly stipulated in the power of attorney. If contradictory provisions have been made in the power of attorney and the living will, it must be examined on a case-by-case basis which provision takes precedence or whether an amicable solution can be found.
It is therefore advisable that the living will and the power of attorney are consistent in terms of content and that the authorized person in the power of attorney is expressly authorized to implement the decisions made in the living will. This ensures that the wishes of the author are respected in the event of illness or accident.
How much does it cost to have a living will and power of attorney drawn up by a notary?
The costs for a living will and a health care proxy at a notary's office can vary depending on the notary and the amount of work involved. As a rule, fees must be paid for a notarized living will and health care proxy in accordance with the Court and Notary Fees Act (GNotKG).
The exact costs depend on various factors, such as the scope and complexity of the documents. For a simple living will or power of attorney, the costs can range from $50 to $150. For more extensive arrangements or consultations, the costs may be higher.
However, it should be noted that a living will and a health care proxy can also be drafted by the patient themselves, in which case only a handwritten signature is required. In this case, there are no notary fees. However, it should be noted that the documents must meet certain formal requirements in order to be valid in an emergency.
What legal regulations apply to living wills, powers of attorney, and guardianship orders?
The legal basis for living wills and powers of attorney in Germany can be found in the Civil Code (BGB) and in guardianship law.
The living will is regulated in § 1901a BGB and defined as a written declaration of intent in which a person specifies which medical measures they refuse or wish to receive in the event of serious illness or an accident. The living will serves to safeguard the patient's right to self-determination with regard to medical decisions.
The power of attorney for healthcare is enshrined in § 1896 BGB (German Civil Code) and gives an authorized person the legal power of representation to make decisions on behalf of the principal if the latter is no longer able to do so due to illness or disability. The power of attorney for healthcare serves to safeguard the principal's right to self-determination with regard to general and medical decisions.
In addition, the law on guardianship in Book Five of the Social Code (SGB V) regulates the legal guardianship of adults who are no longer able to manage their own affairs due to a physical, mental, or psychological illness or disability. The guardianship order is another power of attorney that a person can arrange in advance in order to formulate specific ideas and wishes in the event of legal guardianship. The guardianship order is regulated in § 1896 paragraph 2 BGB.
The most important information about power of attorney, guardianship orders, and living wills
Power of attorney, guardianship orders, and living wills are important tools for making provisions in the event of a loss of self-determination and ensuring that one's own wishes and ideas are taken into account.
A power of attorney is a written declaration in which one person appoints another person as their representative to take care of them in the event that their decision-making capacity is impaired. The representative then has the authority to make decisions in various areas of life, such as financial or legal matters.
A guardianship order is a written declaration in which a person appoints another person as guardian to care for them in the event that their ability to make decisions for themselves is impaired. The guardian then has the authority to make decisions in various areas of life, such as financial or medical matters.
A living will is a written statement in which a person sets out their wishes regarding medical treatment in the event that they are no longer able to express them themselves. These wishes may be general in nature, but may also relate to specific treatments.
It is advisable to address the issues of power of attorney, guardianship orders, and living wills at an early stage and to take appropriate measures. In this way, you can ensure that your own wishes and ideas are taken into account and that you can act independently in the event of a restriction of self-determination. However, it is important to note that each of these instruments has a specific purpose and should therefore not be confused with one another. It is therefore advisable to obtain comprehensive information about the various options and to plan accordingly.
Sample contract for power of attorney, guardianship order, and living will: template
Sample wording for a power of attorney:
"I, [name], born on [date of birth], residing at [address], hereby grant my [name of authorized representative], born on [date of birth], residing at [address], power of attorney to act on my behalf and make decisions in all matters concerning my personal, health, financial, or legal well-being in the event that I am unable to make decisions for myself. This power of attorney includes, in particular, the authority to negotiate on my behalf, conclude contracts, conduct banking transactions, manage income and assets, inspect my documents, and represent me before government agencies and authorities. The power of attorney shall take effect as soon as I lose my decision-making capacity and shall end upon my death."
Sample formulations for a care directive:
"I, [name], born on [date of birth], residing at [address], hereby appoint my [name of guardian], born on [date of birth], residing at [address], as my guardian in the event of my self-determination being restricted. My guardian shall take care of me and make decisions for me in all matters concerning my personal, health, financial or legal well-being. In particular, this care includes the authority to negotiate on my behalf, conclude contracts, carry out banking transactions, manage income and assets, inspect my documents and represent me at public offices and authorities. The guardianship comes into force as soon as I lose my self-determination and ends with my death."
Sample formulations for living wills:
"I, [name], born on [date of birth], residing at [address], hereby declare that I have the following wishes regarding my medical treatment in the event that my decision-making capacity is impaired: [details of the medical measures to be carried out or to be refused]. I hereby designate as my authorized representative: [name of authorized representative]. This living will comes into force as soon as I lose my decision-making capacity and ends with my death.
