Planning ahead for future care – lasting powers of attorney, guardianship directives and advance healthcare directives

Whether due to age, illness or an accident – anyone can end up in a situation where they are no longer able to make their own decisions or act on their own behalf. If they have not made their own arrangements for this situation, the guardianship law (“Betreuungsrecht”) will apply. This means that a guardianship court will appoint a legal guardian. Preference may be given to appointing a family member, but someone from outside the family may be appointed if no suitable family member is available. This person assumes legal responsibility for all or only specific areas of life and takes decisions on matters such as place of residence, stays in hospital or residential care facilities, financial matters or health care.

If, on the other hand, you would like to decide for yourself who will take care of your affairs in an emergency, there are several options. You can use a guardianship directive to specify in advance who your guardian will be. If you want to avoid guardianship altogether, you can also grant a lasting power of attorney to someone you trust. Another option is an advance healthcare directive. This enables you to specify which examinations, treatments or life-prolonging measures you agree to in the event of a medical emergency and which you do not. All three documents are legally binding, providing they have been correctly prepared.

Regardless of whether you grant a lasting power of attorney or issue a guardianship directive, you can also make arrangements for the future with regard to medical treatment. An advance healthcare directive stipulates which measures you agree to and which you do not. In an emergency, the doctors must then check the extent to which your stipulations apply to the situation at hand. If your wishes for the situation are clearly documented in the advance healthcare directive, the doctors can act accordingly without any further consent.

Your doctor can advise you on what to include in an advance healthcare directive. He or she can also certify that you are of sound mind and able to consent at the time the advance healthcare directive is created. However, an advance healthcare directive is still valid even without this kind of medical confirmation.

Further information can be found in the “Advance healthcare directive” (“Patientenverfügung”) brochure published by the Federal Ministry of Justice and Consumer Protection.

The Ministry has also created templates for a written advance healthcare directive in PDF format and as a text file.

A lasting power of attorney (“Vorsorgevollmacht”), or LPA for short, authorizes a trusted person to handle your affairs on your behalf when you are no longer able to do so. A legal guardian does not need to be appointed if a lasting power of attorney is in place. An LPA can relate to individual areas or to all legal matters.

Notarial certification is not required in order for an LPA to be valid. However, this step can be useful to prevent the LPA from being called into question later. It is also possible to have the signature certified by the guardianship authorities. If the power of attorney also applies to banking transactions, it can be advisable to visit the relevant financial institution together with the person to whom you intend to issue the power. A further option for officially registering the power of attorney is the Central Register of Lasting Powers of Attorney (“Zentrales Vorsorgeregister”) of the German Federal Chamber of Notaries (“Bundesnotarkammer”), where you can register the power of attorney and the name of the authorized person.

A guardianship directive regulates legal representation rather than social care. This is because, if you have not granted a lasting power of attorney and are no longer able to make your own decisions, the court will appoint you a legal guardian. This person should then act on your behalf and follow your wishes in so far as possible.

You can use a guardianship directive to is specify in advance who your guardian is to be in the event of an emergency. The court is bound to your choice of guardian, provided that this does not affect your wellbeing. You can also use the directive to specify someone you do not under any circumstances want to become your guardian. You can also make specifications about certain matters, for example, which customs and traditions are to be respected or whether you would prefer to be cared for in a nursing home or in your own home.

You can also combine a guardianship directive with a lasting power of attorney. The directive will then apply if the LPA is not valid.

A template for drafting a guardianship directive can be found on the website of the Federal Ministry of Justice and Consumer Protection (Bundesministerium der Justiz und für Verbraucherschutz, BMJV).

All three documents described in this article are intended as advance directives. For them to be valid, the person who creates them must be legally competent at the time of creation. Notarial certification is not compulsory but may be useful. Templates from the Ministry of Justice and Consumer Protection help you to consider all the different aspects and to meet the formal requirements. You should also make sure that the documents can be found in the event of an emergency – relatives and other trusted persons should be made aware of them. The documents can also be registered with the Central Register of Lasting Powers of Attorney (Zentrales Vorsorgeregister).