Precautionary Legal Measures
Provisional power of attorney, patients order, guardian appointment.
Provisional Power of Attorney
Many people are not aware of the fact that they are not able legally to represent their respective spouse or life partner, or their children of full age. In such cases there exists no statutory power of attorney which would allow them to do so. They would also not be able to obtain any information, from banks or, in cases of medical treatment, from the attending physicians. If no provisional power of attorney was granted, the local court (Amtsgericht) will appoint a statutory guardian, who will then act on behalf of the patient.
In such situations the provisional power of attorney, the appointment of a guardian by the person concerned, and the patient order becomes of prime importance.
When recording the provisional power of attorney, the notary will ascertain whether to grantor of the power of attorney has full capacity. Any argument later on to the effect that the actions by the appointed attorney-in-fact had been null and void due to the fact that the power-of-attorney had not been validly issued, will thus be refuted.
You may determine the scope of the power-of-attorney freely and specify the exact areas regarding personal care and asset administration where the appointed attorney in fact may act on your behalf when you yourself are no longer able to do so. In the power-of-attorney procedures can be established which must be followed to assure that the appointed person will only act if you as the grantor of the power-of-attorney are no longer able to make these decisions yourself.
We deposit the provisional powers of attorney recorded by us with the “Vorsorgereigster” of the Federal Chamber of Notaries (Bundsnotarkammer). There, the powers-of-attorney are available for retrieval by all public authorities concerned with statutory guardianship matters. Thus, care is taken that all public authorities which need to know, become aware that a provisional power of attorney exists, who the appointed individual is and how this person may be contacted. The appointment of a statutory guardian by the local court is thus avoided.
In some cases, despite a provisional-power-of-attorney being present, it may still become necessary to appoint a statutory guardian, because the provisional power of attorney recorded does not cover all possible acts, for example. The individual concerned may make a suggestion to the local court, as to whom the local court should appoint as a statutory guardian. In this way the individual concerned has a possible means to procure that a person whom he or she trusts will be appointed as a statutory guardian, by the court.
German law allows individuals to lay down in advance directives for doctors prohibiting the use of certain medical treatments including the order not to use method which would prolong life and the order not to resuscitate.