New spousal emergency representation law: end of the lasting power of attorney?

New spousal emergency representation law: end of the lasting power of attorney?

The number of so-called “lasting powers of attorney” (Vorsorgevollmacht) in Germany has been rising steadily for years. Nevertheless, the number of people under guardianship due to illness or physical infirmity is increasing. The German Act to Reform Guardianship Law [Gesetz zur Reform des Vormundschafts- und Betreuungsrechts] now aims to strengthen the rights of people who are no longer able to manage their own affairs.

This means that, as of 1 January 2023, spouses have a new legal right of representation, enabling them to make certain decisions for their respective legally incapacitated partner in an emergency, similar to the holder of a lasting power of attorney or guardian. 

Rights of the spouse in the event of their partner’s legal incapacitation 

Contrary to popular belief, spouses were not automatically allowed to manage all of their partner's affairs if the latter became unable to make their own decisions due to an accident or illness. If no lasting power of attorney had been drawn up, a guardian had to be appointed. As a rule, the spouse, a close family member or friend was chosen as the guardian. However, this was not mandatory.

The new limited spousal emergency representation law has strengthened the spouse’s position. The representing spouse may now, in particular

• consent to or refuse examinations, medical treatment or medical interventions and receive medical explanations;
• decide on measures involving the deprivation of liberty, provided that this is for a duration of no more than six weeks;
• conclude contracts related to healthcare matters, such as with hospitals or nursing care facilities; and
• assert claims of the legally incapacitated spouse in connection with the illness, e.g. insurance benefits or benefit claims.

The right of emergency representation is limited to health matters. Moreover, it is only the spouse who is entitled to such representation and not, for example, an unmarried partner, fiancé, children, parents or close friends. It may be exercised for a maximum of 6 months.

The right of emergency representation can amount to nothing, however, if the other spouse is unwilling or unable to exercise it - for example, due to a simultaneous accident or their own illness. The right of emergency representation also cannot be exercised if the spouses have separated, even if in some situations this may have been the will of the legally incapacitated spouse.

The exercise of the right of emergency representation takes precedence over guardianship, but only insofar as this concerns the permitted activities. If further-reaching measures are necessary, e.g. a decision on non-health matters or outside the 6-month period, a guardian still has to be appointed.

Due to the many limitations of the right of emergency representation, it should not be seen as a substitute for a lasting power of attorney (Vorsorgevollmacht) with living will (Patientenverfügung), but only as an emergency right for absolutely exceptional cases in which corresponding proxy documents could no longer be drawn up or cannot be found.

Optimal protection through lasting power of attorney and living will

Optimal protection can only be achieved if a lasting power of attorney with living will is drawn up. The lasting power of attorney designates one or more authorised representatives who can act on behalf of the principal in an emergency. As long as the person who has been given lasting power of attorney is able to act on behalf of the principal, guardianship is ruled out in the vast majority of cases. The living will supplements the lasting power of attorney in that it gives instructions to the authorised representatives and doctors on how to act in cases of serious illness, especially in the dying phase, and on which life-prolonging treatments the principal wishes to receive. 

Unlike the spouse's right of emergency representation, the lasting power of attorney is not limited to healthcare matters, but can include all decisions regarding the person and their assets. There is no time limit for its validity.

The principal is also completely free to determine which persons should act on their behalf. If more than one person is designated, the principal is also free to determine how they are to decide. For example, the lasting power of attorney may stipulate that the authorised representatives may only act jointly or that each may make decisions individually. Alternatively, it can stipulate that certain authorised representatives may only act when another authorised representative is no longer able or willing to act. It is also possible to designate multiple proxies in such a way that each is solely responsible for a particular area of life, such as the spouse and children for health matters and personal assets, and a friend and business partner for business assets. 

Another advantage of the lasting power of attorney is that it may, under certain circumstances, also be accepted abroad. However, this needs to be carefully examined. A lasting power of attorney can be designed in such a way that it is valid beyond death, which means that it can significantly facilitate the settlement of an estate and in many cases dispenses with the need to wait for a certificate of inheritance.

What needs to be done?

The new spousal emergency power of representation law does not change the need to make your own arrangements. In order to ensure that your own will is followed in the event of your legal incapacitation and to avoid uncertainties, you should regulate your own affairs in good time by drawing up a living will with lasting power of attorney.  We would be happy to assist you in drafting legally secure documents.

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