General & Durable Health Care Powers of Attorney
It may be useful or necessary, for a number of reasons, to give another person a power of attorney to perform certain legal acts for the authorizing principal. In particular, in the case of your own legal incompetence due to illness or old age, a trusted person should be given a comprehensive general and health care preventive power of attorney. Otherwise, the caregiver will have to be appointed by the guardianship court in a complicated and cumbersome procedure. This court-appointed guardian is then accountable to the court and requires the court’s approval for all essential legal transactions, in particular for dispositions of immovable property. For spouses, granting such a comprehensive power of attorney is therefore the norm.
A general and health care preventive powers of attorney extend their scope of application to both the areas of property as well as personal rights. The authorized representative may take any business measures in the area of property law for the authorizing principal, particularly for their assets, for example, bank accounts or immoveable property. Only legal transactions that are highly personal in nature, such as last will and testament or contracts of inheritance, are excluded. In the area of personal rights, the power of attorney allows the empowered person, for example, to inspect medical records for the authorizing principal, and in the widest extent, to be involved in the decisions for questions of treatment including discontinuation of treatment, surgeries or transplantations, determination of residence of the authorizing principal and to exercise visitation rights. It is understood that these extensive powers should only be granted if there is an unconditional relationship of trust between the authorized principal and the authorized representative.
Advance Healthcare Directive/Living Will
A living-will contains instructions to the doctor for the medical treatment of serious and most serious illnesses. It can regulate, among other things, the extent to which body functions in such cases should be artificially maintained, whether transplantations are to be performed and to what extent measures of passive euthanasia are to be permitted. The living-will is also commonly called (misunderstood as) the patient testament, although it is not a testament in the legal sense.
A living will does not require notarial certification. However, practice shows that doctors pay more attention to a notarized living will than private handwritten forms, such as those available in pharmacies or downloaded over the internet. In addition, it is advisable to include the living will in the notarial certificate granting a trusted person a general and durable health care power of attorney, and to instruct the authorized representative to enforce the living will with the physicians.
Advance Healthcare Directive/Health Care Proxy Mandate
Anyone who is unable to settle their affairs due to a physical or mental disability, can be placed under the care of a guardian by the guardianship court. The caregiver guardian then takes care of the business and personal matters. They are overseen by the court and accountable to it, and for legal transactions of considerable importance to the person being cared for, they require the approval of the court.
A health care proxy mandate is a suggestion to the guardian court, to appoint a designated person of your trust as a guardian, if care should then be required. As long as the interests of the person being looked after aren’t opposed, this proposal is binding for the court. The health care proxy mandate does not require notarial certification, and it can also be personally handwritten and signed in private.
The granting of a general and health care preventive powers of attorney serves to avoid a guardianship, in order to spare the authorized person, the judicial supervision. Nevertheless, as a precaution, a health care proxy mandate should be included in a general and health care preventive power of attorney, and the authorized person should be proposed as guardian caregiver in the event that, in spite of, or in addition to the power of attorney, guardian care should be required.
An isolated health care proxy mandate is advantageous, if a power of attorney is not to be granted early, or if it is desired that the actions of the person of trust be monitored by a state agency.