To ensure that, in the event of incapacity, the Child and Adult Protection Authority does not appoint an unknown person as a guardian, a lasting power of attorney can be drawn up to stipulate that decisions – such as the sale of a property – are to be taken by a trusted person of one’s own choosing
Legal Situation Without a Lasting Power of Attorney
In the absence of a lasting power of attorney, the right of representation generally lies solely with the spouse. However, this covers only day-to-day decisions, such as opening the post, paying bills or completing tax returns. Actions going beyond this – such as increasing a mortgage or selling a property – are not covered by the statutory right of representation. If such decisions are nevertheless necessary and there is no lasting power of attorney, the Child and Adult Protection Authority intervenes. It appoints a guardian to represent the person lacking capacity in matters that go beyond the spouse’s powers.
The situation is different for unmarried couples: there is no statutory right of representation. Without a lasting power of attorney and the relevant powers of attorney, a cohabiting partner can neither act legally on behalf of the person lacking capacity nor obtain information about their state of health. In such cases, the Child and Adult Protection Authority is obliged to appoint a guardian.
To be able to make decisions on behalf of a cohabiting partner who lacks capacity, it is advisable to draw up a lasting power of attorney.
Lasting Power of Attorney
A lasting power of attorney ensures that, in the event of a person becoming incapable of making decisions, the Child and Adult Protection Authority does not appoint an unknown person as their guardian. Instead, it specifies who is to act on their behalf.
The appointed person makes decisions regarding personal, medical and financial matters and acts on behalf of the person concerned in dealings with authorities and third parties. The lasting power of attorney only comes into effect when the person concerned is no longer able to make decisions for themselves. The lasting power of attorney is then reviewed and validated by the Child and Adult Protection Authority. Upon successful validation, the appointed representative is granted the right to make decisions in the best interests of the person lacking legal capacity and can identify themselves accordingly to authorities and third parties.
The content of the lasting power of attorney can be determined on an individual basis, and specific instructions can be given to the appointed person, for example regarding a preferred care facility. It is also recommended to appoint a substitute in case the appointed person is unable or unwilling to carry out the role in whole or in part.
Forms of a Lasting Power of Attorney
For a lasting power of attorney to be legally valid, certain formal requirements must be met. It may either be drawn up in one’s own hand (in the same way as a will) or be officially certified.
If drawn up in one’s own hand, the lasting power of attorney must be written entirely by hand, dated and signed. Alternatively, the lasting power of attorney may be officially certified by a notary.
Other Useful Documents
In addition to a lasting power of attorney, it may be advisable to grant each other powers of attorney so that you can act on behalf of your partner even whilst you are still of sound mind. You can grant a general power of attorney or, for example, a power of attorney specific to banking matters. These powers of attorney remain valid as long as you are of sound mind and they are not revoked.
A living will is also recommended. This sets out how you wish to be treated medically should you ever be unable to express your wishes yourself. It can also specify which individuals are authorised to receive information about your state of health.
For any questions regarding advance planning and the preparation of a lasting power of attorney, the notaries of Pilatushof AG will be happy to assist you.
