An accident, serious illness or old age can quickly render you incapable of judgement. What happens if you are not prepared for this?
Married couples often believe that their spouse will then automatically make the decision for them. However, this is not necessarily the case. If one partner is incapable of judgement, the other may continue to carry out day-to-day business, such as dealing with and opening the post, paying bills and managing income . The partner is not permitted to carry out non-day-to-day or extraordinary actions such as placing the incapacitated partner in a care home or selling their house without a power of attorney. If such actions become necessary and there is no advance care directive, the Children's and Adults' Rights Authority (KESB) will intervene. It appoints an authorised representative who it deems suitable. This can also be a third party who is not part of the immediate family circle and who must subsequently report to the KESB every two years.
If you want to be sure that your wishes will be followed in the event of incapacity of judgement, it is advisable to draw up an advance care directive and a living will in good time, in which the representative is specified and the guidelines for action in the event of incapacity of judgement are set out.
When choosing a representative for the advance care directive, you should ask yourself the following questions:
- Can I trust the person and do they know me well enough to follow my directives?
- Do they have the time to take over my affairs? Can I burden them with this extra work?
- Are they suitable to conclude the necessary legal transactions?
While the advance care directive covers personal care, property care and additional instructions, the living will includes questions about medical decisions.
As a result of an accident or illness, it may happen that you are no longer able to communicate yourself. Medical professionals are then required to assess the situation and make decisions about further treatment together with relatives.
The living will makes the sometimes difficult decisions easier for everyone involved. The patient knows that their fears and ideas have been recognised and taken seriously and that their wishes have been respected. The relatives and doctors act in accordance with the patient's wishes and do not have to question their already difficult decisions.
In order for the advance care directive and living will to be legally valid, certain formal requirements must be met.
The advance care directive must either be completely handwritten and dated, similar to a will, or it must be notarised.
The advance care directive must be kept in a place where it is easy to find. The place of deposit can be entered in the civil status register at the civil status office in the municipality of residence. The registry office is the first point of contact for the KESB when it comes to determining whether such precautionary measures have been taken or whether the KESB needs to call in an adviser.
The regulations for advance directives are less formal. It must be written, but not necessarily handwritten, and dated and signed by hand. Once again, it is up to the individual to decide where to keep it. However, close relatives should know where the directive can be found. In addition, the doctor responsible must receive the original as quickly as possible in the event of an emergency.