5 Common misconceptions about health care proxies

The need for care can affect anyone. Therefore, it is advisable to act precautionary and to give a power of attorney for precaution to a person (or persons) of trust in healthy days. If you are no longer able to make your own decisions, this person can take care of your affairs and act directly on your behalf. However, it is also possible to specify what the authorized representative should not be allowed to do. However, certain requirements must be met and rules must be observed.

5 Common misconceptions about health care proxies

1. Spouses are automatically always authorized to represent the patient.

This is not correct! Spouses are not legal representatives and they also need a legally valid power of attorney. Parents have an automatic right of representation in relation to their underage, incapacitated children, or guardians in relation to their wards, or caregivers in relation to those they care for. So if your spouse is supposed to represent you in an emergency situation, he or she needs a power of attorney. In order to be able to issue a health care power of attorney, you need to have the basic legal capacity. You can freely determine the scope of the power of attorney. To ensure that the authorized person can handle all conceivable matters, it is advisable to grant a power of attorney that is as comprehensive as possible. Usually, the power is granted to "act for the principal in all property and personal matters". If a legally valid health care proxy is available, it can also be combined with a so-called care directive. The appointment of a guardian in an emergency or serious case by a guardianship court could thus be dispensed with and a possibly necessary judicial procedure with medical and psychiatric assessment could be omitted. In this case, important matters concerning the grantor of the power of attorney can be taken care of by the appointed authorized representatives. The scope is determined in the individual case by whether a power of attorney for individual cases or a general and provident power of attorney or, if applicable, a notarized power of attorney has been granted.

2. The health care proxy also fully covers my health care needs.

This is wrong! A health care proxy can regulate the measures required for medical and nursing care, but if you want to be sure that your will is taken into account, a living will is necessary. This can specify in detail what measures are to be taken after accidents or illnesses, should you no longer be able to make independent decisions at any time. Only a correct and valid living will ensures your desired right to self-determination in the event of an emergency. With a health care proxy, you can appoint a trusted person of your choice to support you in personal matters if you are no longer able to do so independently at a certain point in time. For example, this may concern your finances, judicial matters or even questions about your living space mean. If you have a living will AND a health care proxy, the authorized representative of the health care proxy must ensure that the living will is enforced. Thus, according to §1901 a para. 1 i.V.m. Para. 6 of the German Civil Code (BGB), whether the living will is applicable to the current life and treatment situation, which, if affirmed, would result in the patient's will being enforced. If no living will is available or if it does not apply, the patient's will must be ascertained. His or her wishes are to be determined by concrete assumptions, whereby previous expressions of will and values are to be taken into account. If you wish to use the health care power of attorney instead of a living will to regulate health care issues for yourself, this should be done in writing for reasons of clarity and probative value.

3. A health care proxy is only effective and legally valid with notarial certification.

This is not mandatory! A person of full age and legal capacity can in principle draw up a power of attorney without any formal requirements. In contrast to the living will, this is also verbally binding. For reasons of legal certainty, however, it is recommended that the person you have authorized to act on your behalf be recorded in private (hand) writing. The power of attorney is then legally validated by your signature. For the legally secure drafting you can z.B. Use print templates from legal publishers or the BMJ or certified online providers. The notarial certification by notarization of the power of attorney written by you is required if the*authorized person you z.B. represent you in real estate transactions. A copy is not sufficient for the authorized representative to be able to represent you. This power of attorney for health care can be revoked at any time without giving reasons if your wishes or the relationship of trust with the authorized person changes. In the course of this, the issuance or. the return of the power of attorney can be requested.

4. A health care proxy only becomes effective in the event of a precautionary measure.

No! As a rule, a health care proxy becomes effective for the authorized representative upon receipt of the original, unless you have explicitly made other agreements: you therefore only allow yourself to be represented from the point in time when you yourself are no longer in a position to decide independently about your affairs. Therefore, a high level of trust in the person you authorize plays an important role when issuing a power of attorney. Risks of abuse can be minimized by supplementary clauses. So you can z.B. make the presentation of a medical certificate on their state of health a condition for the use of the health care proxy. An additional clause to be fulfilled by the authorized representative can in turn lead to undesirable, time delays in the event of an emergency. You should therefore consider carefully weighing all the pros and cons when drafting it. As a general rule, a health care power of attorney does not lose its validity until it is revoked, which you can do at any time. Further provisions can be regulated in the power of attorney itself. A health care power of attorney can also be valid after death and obligate the authorized person to take care of his or her affairs even after the death of the person granting the power of attorney. However, as a rule, the interests of the heirs must also be taken into account, who in this case also have the possibility of revocation.

5. Lasting powers of attorney cover all banking and financial transactions.

Unfortunately this is only true in theory! Banks, however, may refuse to recognize a private power of attorney for health care and usually insist on a separate bank power of attorney from the respective credit institution. This happens because, in practice, banks do not (or cannot) check the legal validity of a privately written health care power of attorney or the lack of legal capacity of the person granting the power of attorney. To rule out disputes from the outset, you should ask your bank about the individual possibilities of a bank power of attorney. A health care power of attorney also makes it possible to make gifts within the limits of the law. So-called "self-dealing", i.e. transactions of the authorized representative with himself, is generally prohibited to avoid conflicts of interest and abuse, unless the principal expressly permits it. Just as you can explicitly permit actions, gifts can also be explicitly prohibited or restricted to certain assets, for example. Only a so-called general power of attorney allows the authorized representative unrestricted possibilities and rights in dealing with your assets. Therefore, in order to avoid undesirable consequences, it is always advisable to seek professional legal advice when drawing up a health care power of attorney.

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