Lasting powers of attorney, guardianship directives and advance healthcare directives

People who are no longer able to take decisions or act for themselves with regard to legal and health matters or who need support doing this, are appointed a legal guardian to assist them.

There can be various reasons for this, for example mental impairment due to illness, disability, old age or if someone is left unconscious following an accident.

Situations in which people are no longer able to act for themselves can occur suddenly and affect even younger adults.

It is therefore advisable to consider questions such as the following at an early stage:

• How do I feel about certain medical interventions? 
• Do I have any particular ideas, values and wishes that should be adhered to? 
• Who should make decisions for me if I am unable to do so myself?  

There are three ways in which you can stipulate your will in a legally binding manner for situations in which you are no longer able to express yourself: 

• Advance healthcare directive (Patientenverfügung): this stipulates the care that you should receive if you are no longer able to express your ideas and will. 
• Lasting power of attorney (Vorsorgevollmacht): this grants someone you trust a power of attorney to represent you in health, legal and financial matters.   
• Guardianship directive (Betreuungsverfügung): this can regulate the same matters as an advance healthcare directive. However, people appointed by a guardianship directive are monitored as they have to report their activities to a guardianship court. 

Depending which document you select and how you formulate the content, the trusted person’s room for decision-making and initiative is restricted or subject to certain checks.

All three documents are only legally binding if they have been correctly prepared. They have to be available as originals and signed and dated by you.

What happens if someone has not created advance directives? 

No-one can automatically take full responsibility for making decisions and acting on behalf of an adult – not even close family members. Only married couples can take decisions for each other on health matters for a limited period of time in emergencies.

If you have not created any advance directives, a guardianship court will select somebody to legally represent you.

If you wish to ensure that a certain person acts and takes decisions on your behalf, following your will as they do so, you must stipulate this in writing in a lasting power of attorney or a guardianship directive, or possibly also in an advance healthcare directive. 

An advance healthcare directive (Patientenverfügung) enables you to stipulate in writing whether and how you wish to be treated in certain situations if you are no longer able to express yourself in this regard.

You can stipulate which examinations, treatments or life-prolonging measures you agree to, which you do not and what your wishes are. Doctors, caregivers and therapists are obliged to adhere to your will if the advance healthcare directive is clear and binding.

If you have authorized someone to manage your health matters in a lasting power of attorney, you can indicate this in the advance healthcare directive.

Who can provide advice on advance healthcare directives? 

It is advisable to obtain professional advice on advance healthcare directives. Consultants can help you use the right wording and avoid contradictions between different stipulations, for example.

Advice can be obtained from many welfare and social associations, consumer advice centers and associations, as well as from your doctor. The latter can also certify that you are of sound mind and able to consent at the time the advance healthcare directive is created. Although an advance healthcare directive is still valid even without this kind of medical confirmation, it can be useful if the advance healthcare directive is ever called into question.

Part of an advance healthcare directive can be a document in which you record your wishes, your fears or your beliefs. For example, if you are young and have children, you can note that you would like to see them grow up. You can also stipulate the situations in which you would prefer to die. These ideals can be useful for determining your “presumed will”. Attach this written document to the advance healthcare directive.

If you have not used a lasting power of attorney or guardianship directive to appoint a person of trust, the advance healthcare directive and your ideals make it easier for external legal guardians to follow your will.

Further information can be found in the “Advance healthcare directive” (“Patientenverfügung”) brochure published by the Federal Ministry of Justice and Consumer Protection (Bundesministerium der Justiz und für Verbraucherschutz – BMJV).

A lasting power of attorney (Vorsorgevollmacht) allows a person of trust to handle your legal, financial and health matters on your behalf.

Who can be appointed as a person of trust using a lasting power of attorney? 

Any adult can be appointed as an attorney. As this power of attorney grants the person comprehensive rights, you should only appoint someone who you trust unreservedly.  

It is possible to appoint multiple people. Your person of trust can also decline the power of attorney and should therefore ideally be consulted about it in advance.

More information about lasting powers of attorney and key considerations when selecting an attorney can be obtained from the consumer advice centers.

What rights are granted by a lasting power of attorney? 

You can grant your person of trust a power of attorney for all matters. However, it is also possible to restrict the power of attorney to certain areas. It is important for you to list all areas for which the power of attorney should apply. 

For example, these include:

• health and care needs 
• residence and living situation 
• representation in relation to authorities, the court and postal services 
• asset management 

Certain powers also have to be explicitly mentioned in the lasting power of attorney. For example, the attorney can only act on your behalf with regard to health matters if you have expressly stipulated this. This includes having your doctor inform them about your health, being able to view care documentation and being able to take decisions on serious medical interventions.

How do I stipulate rules and wishes for the power of attorney? 

The power of attorney is a declaration intended for third parties. You use it to stipulate who should represent you in which areas.

Your wishes and ideas in relation to the individual areas as well as rules and instructions for the attorneys are not recorded in the power of attorney itself but in a separate document. This is entitled “Internal relationship rules” (“Regelungen im Innenverhältnis”).

The following stipulations are agreed in the internal relationship, for example: 

• wishes as to how the attorney should act in certain situations  
• the order of seniority of the attorneys and who should have the last word in the event of a disagreement if you appoint multiple attorneys 
• rules for preventing abuse 
• stipulations on when the lasting power of attorney should be used 

All attorneys should sign the internal relationship rules. It is also possible to make a note in the power of attorney that this document exists so your will can be checked in the event of doubt.

It is useful but not obligatory to record the internal relationship rules in writing. Regardless of this, it is advisable for you to discuss the power of attorney and rules with your attorneys. This enables you to clear up any misunderstandings.

Who ensures that the lasting power of attorney is adhered to?

If a lasting power of attorney is in place, no legal guardian is appointed. This means that, unlike with a guardianship directive, the attorney is not appointed and monitored by the court.

You can make stipulations in a lasting power of attorney to prevent abuse:  

• Division of responsibility: you can appoint several people and grant them power of attorney for different tasks.  
• Legal transactions prohibited: you can specify the areas in which the person appointed by you has no authority. A legal guardian may then be appointed for these areas. 
• Consensual decision-making: you can stipulate that certain decisions can only be made on the consensus of multiple attorneys. 
• Accountability: you can stipulate that the attorney has to report to others with regard to their decisions and their actions. This is also known as “reporting”.

You can revoke a power of attorney if you are still of sound mind to do so and subsequently grant somebody else power of attorney or divide up areas differently. You should insist that you receive your power of attorney back. It is also important to always date the latest version as this is regarded as the most recent power of attorney.

Anyone who has well-founded and concrete grounds to suspect that an attorney is abusing their position of trust can informally propose the appointment of a supervisory official by the guardianship court. 

If you do not have anyone around you who you trust to manage your affairs in line with your wishes, it is advisable to make arrangements with regard to potential future guardianship in a guardianship directive. This can also be useful to prevent disputes.

A legal emergency right of representation exists for married couples, which enables them to make decisions for each other in the event of unconsciousness or illness even without a lasting power of attorney or legal guardianship. This only relates to health emergencies and is limited to a maximum of six months. In the event of measures involving a deprivation of liberty, the emergency right of representation is restricted to a maximum of six weeks.

The attending doctor must confirm the criteria in writing, thus determining the start of the period.

The emergency right of representation includes the right:

• to take decisions in relation to examinations, medical interventions and medical treatment 
• to be informed about the condition of the partner’s health (release from confidentiality obligations) 
• to enter into contracts regarding hospital stays, treatments and urgent care and rehabilitation measures 
• to make decisions on measures involving a deprivation of liberty in a hospital or care home 
• to assert claims from the sick spouse against third parties if associated with the emergency situation, for example against another party involved in an accident

The right of representation does not apply:

• to separated married couples  
• if the attending doctor knows that the spouse declined such representation  
• if someone else has been appointed as an attorney 
• in the event of a legal guardianship

If the emergency right of representation comes to an end but the person’s health has not significantly improved, the court will appoint a legal guardian.

If you wish to ensure that your spouse or registered partner is able to represent you in other areas and over the long-term, you need to create a lasting power of attorney and possibly also an advance healthcare directive. 

You can use a guardianship directive to stipulate in advance who the guardianship court should appoint as your legal guardian – and also who it should not.

This person is obliged to manage your business and legal affairs in line with your wishes and assumes legal responsibility for this. They have to report their activities to the court.

The court is bound by your decision unless the desired person is unsuitable for guardianship.

You can also use a guardianship directive to make specifications about certain matters, such as which customs should be respected and whether you would prefer to be cared for in a care facility or at home.

Describe your wishes and desires clearly and as specifically as possible. This enables the guardianship court to precisely determine whether your will has been considered. But even if you do not stipulate anything in writing, legal guardians are obliged to implement your will or your presumed will.

You can combine a guardianship directive with a lasting power of attorney. If the lasting power of attorney becomes ineffective, is only partly available or the power of attorney does not come into effect, this enables someone you have selected to be appointed as your legal guardian.

What duties and obligations are associated with legal guardianship? 

Legal guardians assume responsibility for various areas of life. A guardianship court decides whether and in which areas of life guardianship is required.

For example, these include: 

• health and care needs 
• residence and living situation 
• finance and asset management  
• representation in relation to authorities, the court and postal services 

Guardians organize, manage and apply for everything necessary – if the person under their guardianship cannot do this themselves. They must follow the will of the person under their guardianship with regard to all activities and decisions: they must provide the person under their guardianship with information and advice, and help them make self-determined decisions. Decisions on the person’s behalf should be an exception and must also be made in line with the wishes of the person subject to the guardianship even if – from an external perspective – they are not beneficial.

There are various “assisted communication” methods and tools that can help guardians make decisions. They are helpful if a person subject to guardianship is unable to speak or can only express themselves to a limited extent. For example, picture and word cards can be used to determine the person’s will.

Further information and materials can be obtained, for example, from the Self-Determined Life in Germany Advocacy Group (Interessenvertretung Selbstbestimmt Leben in Deutschland e.V. – ISL).

From where can voluntary guardians obtain support? 

Voluntary guardians with no family or personal ties to the person subject to guardianship have to join a guardianship association. Guardianship associations provide advice and, on request, also support relatives who act as guardians. They furthermore provide a substitute guardian for situations in which relatives are temporarily unable to deal with the guardianship.

Finance options 

The costs of legal guardianship have to be borne by the person subject to guardianship if they have sufficient assets to do so.  

Further information about the costs and other areas of legal guardianship can be found in a brochure published by the Federal Ministry of Justice (Bundesministerium der Justiz).

The Federal Ministry of Justice also provides information about guardianship in simple language.

All three advance directives have to fulfill certain formalities in order to be valid. They must: 

• be in written form and available as originals 
• contain the name, date of birth and address of the principal 
• be signed and dated with an indicated place of signature 

Advance directives do not have to be created by a lawyer or notary. However, legal support can be useful if, for example, you are very wealthy, you wish to appoint multiple attorneys or there is a family dispute.

Advice and assistance with the wording of advance directives can also be obtained from guardianship associations and local guardianship authorities.

The consumer advice centers provide online tools for creating advance healthcare directives, lasting powers of attorney and guardianship directives. 

The Federal Ministry of Justice offers templates and text modules that help you keep an eye on the various aspects and comply with formal requirements: 
Text modules for a written advance healthcare directive  
Form for a lasting power of attorney  
Form for an account and deposit power of attorney 
Form for a guardianship directive

When is certification required? 

Your signature on the documents does not necessarily have to be certified. This means that no official body has to confirm that you have actually signed the power of attorney or guardianship directive. In many cases, however, certification increases acceptance.

For some matters, a certified lasting power of attorney is required, for example when applying for a new identity card or for real estate transactions.

You can have your signature certified by a guardianship authority for a small fee.

When do advance directives have to be notarized? 

You have to be legally competent to create a lasting power of attorney. Notarization by a notary is not mandatory. However, it can be useful, for example if your legal competency and the validity of the document could be questioned.

The notarization of the power of attorney or the notarial acknowledgment of the signature is, however, required if the power of attorney also relates to real estate transactions, loan agreements are to be concluded or company shares are to be sold, for example.

To create an advance healthcare directive, you simply need to be legally competent; it does not have to be notarized.

Why is a bank power of attorney useful? 

Financial institutions often do not recognize private lasting powers of attorney. A separate bank power of attorney can help to avoid disputes. To create such a document, visit the financial institution in person together with the person to whom you intend to grant the bank power of attorney. 

Further information on lasting powers of attorney in relation to real estate and financial matters can be obtained from the consumer advice centers.

Advance directives should be stored in a location where they are available if required: inform relatives and other persons of trust that you have created a lasting power of attorney, guardianship directive or advance healthcare directive and tell them where you have stored them.

It is important to choose a place that is known to and easily accessible by the attorney. For example, in an easy-to-find “advance directives folder” containing important documents.

You can also provide the attorney with the advance directives from the outset under the proviso that they only make use of the documents in the discussed situation. You can also note such a requirement in the additional rules for the power of attorney.

In the following places you can also record the fact that you have created an advance directive and where it can be found: 

• Central Advance Directive Register (“Zentrales Vorsorgeregister”) of the German Federal Chamber of Notaries (“Bundesnotarkammer”) 
• Note cards in your wallet 
• Note on the electronic medical data card (eGK) 

Further information about the Central Advance Directive Register can be obtained from the German Federal Chamber of Notaries.