Some common questions on the subjects of inheritance law, patient directives and health care proxy answered by Ott-Eulberg, Attorney and Specialist Attorney for Inheritance Matters.
How many people in Germany have had a legally-appointed guardian prescribed for them?
Around 1.0 million people who were no longer competent have been allocated a legally-appointed guardian by the German Guardianship Courts.
How could the appointment of a guardian have been avoided?
This compulsory measure can be avoided by means of a health care proxy.
Which persons would the Guardianship Court appoint as a guardian?
Where a guardian does need to be appointed, the relevant Guardianship Court will accept the specified representative without a governmental process.
What wording is recommended for this?
We recommend the following wording:
My spouse is to be my guardian. This could, for example, be the content of a health care directive. The Guardianship Courts are for the most part bound by this declaration.
What is the current status with regard to passive euthanasia?
The request for passive euthanasia, i.e. the switching of medical apparatus, is to be respected. This intent must also be adequately documented in a patient directive. The documentation needs to be checked by the Guardianship Court. Where this has occurred, physicians are obliged to respect this wish. The Federal High Court determined this in its Decision XII ZB2/03.
Does the spouse have a say?
Contrary to general opinion, family members do not have a say in the life and finances of a person who no longer has the mental capacity to manage his/her affairs. Family members may only exercise this right if a health care proxy exists.
Is there a statutory regulation on this?
Unfortunately no statutory regulation exists at present. Despite many years of endeavor to reform the guardianship law, no statutory bill has come of this yet.
Where do I store my health care proxy?
We recommend having the health care proxy and the health care directive registered. The law firm advising the client can organize for this to occur.
What is the stance of the churches in Bavaria on patient directives?
Both the Catholic and the Protestant churches will respect the decision of one its members to forego life-extension measures where this has been stipulated in a patient directive.
Does a patient directive need to be signed by a physician?
There is no reason why a patient directive needs to be signed by a physician. This often-voiced legal view is completely false.
How about non-marital partners; can they be given power of attorney by means of a health care proxy?
If a non-marital partner is given power of attorney by means of a health care proxy, then of course he/she is in a position to and entitled to act on behalf of the appointer and can also demand from the relevant treating physician information about the status of the medical care.
Isn’t there a risk of abuse of the health care proxy?
Naturally it is possible for the representative to abuse the health care proxy. It is therefore of utmost importance that this health care proxy only be granted to persons who enjoy the utmost trust. The risk of abuse of the health care proxy can also be minimized by incorporating certain control mechanisms. A specialized law firm can draft suitable contracts for this.