Post-mortem power of attorney

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As a post-mortem and Trans-mortem powers are powers called after the death of the person who gave it to be valid. Postmortal denotes powers of attorney that only apply after death (e.g. also in the context of a funeral decree ), transmortal those that apply before and after death. The power of attorney is granted by the deceased, but applies as a power of attorney for the heirs after death , since the deceased is no longer legally competent .

Germany

According to German law, the power of attorney does not always expire with the death of the principal, but rather it must be determined through interpretation whether the power of attorney should apply beyond death. If the power of attorney is based on a contractual relationship, the rule of interpretation is that in case of doubt the order and thus the power of attorney continue to exist (§§ 168 S. 1, 672 S. 1 BGB). The same is true of the underlying pecuniary management contract (§ 675 BGB).

In the case of an isolated power of attorney, it is assumed that the power of attorney will expire. In the opinion of several higher regional courts, the same should apply to a power of attorney , as this is intended to replace legal care and the latter ends with the death of the person under care.

Austria

Under Austrian law (§ 1022 ABGB), the power of attorney usually ends with the death of both the principal (author) and the authorized representative (author). However, if the legal transaction that has been started cannot be interrupted without any obvious disadvantage for the heir, or if the power of attorney expressly extends to the death of the principal, the authorized representative has the right and the duty to complete the transaction.

Switzerland

In Swiss law, the power of attorney expires, unless the contrary has been agreed or is clear from the nature of the transaction, with the death, declaration of missing, loss of legal capacity or bankruptcy of the principal or the authorized representative (Art. 35 I OR).

Individual evidence

  1. Barbara Grunewald : "The use of post- and transmortal powers of attorney to the detriment of the heir." In: ZEV 2014, pp. 579–583.
  2. BGH, judgment of April 18, 1969 - V ZR 179/65 = NJW 1969, p. 1245.
  3. a b Karl-Heinz Schramm . In: Munich Commentary on the BGB, Vol. 1, 6th edition 2012, § 168 Rn. 17th
  4. OLG Hamm , decision of September 17, 2002, 15 W 338/02; OLG Munich , decision of July 7, 2014, 34 Wx 265/14; OLG Naumburg , judgment of October 8, 2015, 1 U 72/15