healthcare proxies determine who may act in property and non-property matters instead.
The living will, on the other hand, is aimed at doctors. It regulates medical and care aspects. There is a third document in the context of precaution: the care directive. This allows people to specify who should be appointed as a guardian by the guardianship court.
Why do I need a healthcare proxy?
Any of us can suddenly find ourselves in a situation, perhaps only temporarily, where we can no longer make decisions and act independently due to an accident, illness or age. In this case, the law does not provide for automatic representation for a person of legal age. Neither spouse is authorized to act on behalf of the other spouse on the basis of the marriage, nor are the adult children entitled to represent their parents on the basis of the family relationship or, conversely, the parents are entitled to represent their adult children on the basis of the family relationship.
So if you want to avoid lengthy guardianship proceedings and the risks of guardianship, it is strongly recommended that you grant healthcare proxies. However, there must be a person or persons in whom they have great trust and who they believe will make sensible and correct decisions on their behalf. The person should also be willing to act as their representative.
What are the contents of a healthcare proxies?
A healthcare proxy usually contains a general power of attorney for financial matters and a power of attorney for personal matters. The general power of attorney in financial matters authorizes the proxy to represent the principal in all financial matters in and out of court in any legally permissible manner. With the power of attorney in personal matters, the authorized representative can obtain access to medical records and information from doctors, declare consent and non-consent to medical treatment and operations, make residence and contact arrangements and decide on the implementation of measures that deprive or restrict freedom. The scope of the power of attorney is determined by the principal.
The validity of the power of attorney can be subject to conditions. However, this limits the practicability of the power of attorney. It is advisable to grant the power of attorney to third parties without restriction. There are risks of abuse associated with this. However, these must and can generally be accepted. After all, a power of attorney is only granted to someone you trust sufficiently. Risks of abuse can be countered to a certain extent: The authorized representative does not have to be given the original or the copy of the power of attorney that he or she needs to act effectively immediately. However, the authorized representative must then be informed where the copy of the power of attorney is kept and must be able to access the power of attorney. Otherwise, nothing is gained in an emergency. In particular, if parents authorize not only each other but also their children, it may make sense for the parents to keep the copies of the powers of attorney for the children with them for the time being.
Are there any formal requirements for healthcare proxies?
It is sufficient for the healthcare proxies to be issued in writing to be effective. However, it is advisable to issue a notarized healthcare proxy. A notarized power of attorney has a much higher evidentiary and testimonial value. Experience has shown that it is trusted by public offices, authorities, hospitals and doctors. Added to this is the great flexibility of a notarized power of attorney. The notary can also issue copies at a later date upon request. This can be particularly important if a power of attorney cannot be found in an emergency or care situation.
Living will
A living will is a precautionary statement that specifies that certain medical measures should be carried out or not carried out in the event that you are unable to make decisions. For example, you can decide to refrain from or discontinue life-prolonging or life-sustaining measures that would only delay the onset of death and thus unnecessarily prolong suffering. It can also state that medication should be given to alleviate pain, even if it leads to a shortening of life. The living will is primarily aimed at the doctor. The will of the patient expressed in the living will should be taken as a basis by the doctor, even if this will can no longer be expressed. The will is enforced vis-à-vis the doctors by the authorized representative named in the living will or by a guardian.
For some time now, healthcare proxies and living wills can be registered centrally with the Federal Chamber of Notaries.