Power of attorney

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With a health care proxy, a person authorizes another person under German law to perform all or certain tasks for the principal in the event of an emergency . With the power of attorney, the proxy becomes a representative in the will, i. H. he decides in place of the principal who is no longer capable of making a decision. Therefore, a health care proxy presupposes unconditional and unrestricted personal trust in the proxy. For Germany, the legal basis for the actions of the authorized representative can be found in § 164 ff. BGB , for the relationship between the principal and the authorized representative (so-called.Order ) in § 662 ff. BGB.

In Austria, the power of attorney was enshrined in law in the law enforcement amending law 2006 in ABGB §§ 284 fh. This came into force on July 1, 2007 and essentially corresponds to the rules of the law of the Federal Republic of Germany.

Replacement for legal support

A legal support can largely be avoided by a health care proxy. In such a declaration, the person granting the power of attorney gives another person the power of attorney to act on behalf of the person granting the power of attorney in the event of a later business and / or incapacity to consent (e.g. due to a decline in mental abilities due to illness). The power of attorney has a different regulatory content and the advance directive regulates, is not available in the one who is to act, but the operative even what to do about the case of incurable disease. However, parts of both declarations can be combined in one document. The powers of attorney do not require a notarial certification (Section 167 (2) BGB), although this is recommended for security reasons. A public certification of the signature is z. B. required for a real estate transfer (§ 29 Land Register Regulations ). Authorized representatives only have to prove that they are authorized (Section 167 (2) BGB). Public signature authentications take u. a. the supervisory authorities in Germany. You can charge a fee of 10 euros for this (Section 6 (2), (4) and (5) of the Supervision Authorities Act (BtBG)). In Hesse, the local courts also certify . A signature can also be certified by a notary nationwide. This incurs fees between 20 and 70 euros. In principle, only to legal capacity and age people who are authorized as Agents.

Legal advice

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Legal advice on power of attorney and the production of individually tailored drafts for power of attorney are part of the responsibilities of lawyers and notaries . In practice, this is often combined with advice on legal succession and dispositions due to death . Notaries and lawyers create legally secure individual power of attorney documents and advise on the scope and risks of granting a power of attorney. You coordinate the pension certificates with other important, partly notarial, dispositions, especially in the event of death ( wills , inheritance contracts ). Since the lawyer has no sovereign powers like a notary, he cannot officially determine the identity of the principal; a public power of attorney can only be drawn up by the notary. However, such a public power of attorney is not a prerequisite for the effectiveness of a health care proxy.

Recognized care associations have been allowed to advise people who want to set up a health care proxy since July 1, 2005 ( Section 1908f Paragraph 4 BGB). They usually offer extensive advice, which is clearly practice-oriented due to the professional supervision of the club supervisors. Previously, advice was only possible from notaries and lawyers, which is still possible.

The advice and support of individuals on general questions about precautionary orders (powers of attorney and supervision orders) also falls within the advisory area of ​​the supervisory authorities. ( Section 4 (1) BtBG). In addition, the supervision authority is entrusted with the certification of signatures and hand signals under precautionary powers and supervision orders. ( Section 6 (2) to (6) BtBG)

There are ready-made forms, for example from the Federal Ministry of Justice , which you only have to tick or sign. However, this raises individual questions and U. not taken into account.

Control Supervisor

If there is a risk of abuse of the power of attorney, the guardianship court can appoint a supervisor if it has knowledge of the abuse at all ( Section 1896 (3) BGB). One can in the enduring power of attorney already control representative be included, but which only has the rights provided by the settlors, so information and financial publication.

In practice, the order usually relates to the following issues (examples are not exhaustive) .

Legal character

A health care proxy is a declaration of intent that allows another person to legally represent you. According to Section 1896, Paragraph 2, Clause 2 of the German Civil Code, the appointment of a legal supervisor is dispensable despite the existence of the medical requirements ( Section 1896, Paragraph 1 of the German Civil Code) if the affairs of the person concerned can just as easily be dealt with by a power of attorney. In the health and personal area, some provisions of the law on care also apply to the authorized representative. He has to have a custodial placement and other custodial measures approved by the court (this also includes highly sedative medication). The same applies to dangerous medical treatment . On the other hand, the proxy is not controlled by the supervisory court in financial matters . It can therefore be advisable to include control mechanisms in the health care proxy yourself, for example granting the power of attorney in such a way that only two authorized representatives can use it ( four-eyes principle ).

shape

A legally effective power of attorney presupposes that the principal had his free will at his disposal when it was granted, i.e. that he was legally competent for this reason ( § 104 BGB). Likewise, can living will only give consent and majority are legally established ( § 1901a BGB).

Powers of attorney are generally admissible in any form and can theoretically be granted orally. However, written form is generally expected in legal transactions.

In the case of establishment in the form of notarial certification ( § 128 BGB), the notary advises on the legal effects and content of the power of attorney and carries out official documentation of the identity of the principal. Notaries are not obliged to check the legal capacity, but according to Section 11 of the Notarization Act, they should note doubts about the legal capacity in the deed. In practice, in the case of a notarial power of attorney, this may lead to a higher evidential value to the effect that the principal was legally competent.

If the supervisory court has doubts about the legal validity of the power of attorney, it can appoint a supervisor . A medical certificate , in which the ability to form a free will is certified, can at best slightly increase the credibility of the power of attorney in cases of doubt, but ultimately does not force the supervisory court to refrain from ordering care.

If the power of attorney should also be suitable for real estate transactions, notarial certification is recommended. In the case of a notarized power of attorney, the notary can later issue further copies (special copies of the original that represent the original in legal transactions). This is not possible with other forms of establishing a power of attorney, because if the original is lost or destroyed and the principal has lost his legal capacity in the meantime, the existence of the power of attorney can only be proven with difficulty in legal transactions. Even a certified photocopy of the original is not sufficient in such cases.

There is a case law according to which power of attorney from banks has to be accepted in principle, at least in the case of notarial certification, but from a practical point of view banks often insist, for reasons of liability, that a power of attorney has been deposited beforehand via a bank's own procedure.

If the health care proxy is to give consent to medical measures at the same time , the implementation of which creates the justified risk that the principal will die as a result of the measure or suffer serious and long-term damage to health, the power of attorney must at least be in writing and expressly state the measures concerned ( Section 1904 (5) BGB). The same applies if the authorized representative is to be entitled to arrange for the principal to be placed in a custodial arrangement ( Section 1906 (5) of the German Civil Code) or to represent him in court ( Section 51 ) (3) of the ZPO .

For better acceptance in legal transactions, since July 1, 2005, the municipal care authorities have been able to publicly notarize signatures and show hands under precautionary powers (and care directives ) ( Section 6 of the Care Authority Act ). The legal classification of such a signature authentication used to be controversial. The legislature has now clarified through the law amending the gain equalization and guardianship law of 6 July 2009 ( Federal Law Gazette I p. 1696 ) that the certification by the clerk of the supervision authority is a "public" certification (cf. § 6 para. 2 BtBG in the version from September 1, 2009) and is therefore equivalent to certification by the notary. The power of attorney certified in this way can therefore also be used for declarations on the land register ( Section 29 Land Register Regulations ) or in court proceedings if this is requested by the other party ( Section 80 (2) ZPO).

content

The power of attorney can refer to all legally relevant acts in which representation is permitted. This is not the case with highly personal legal transactions such as marriage , the will or the exercise of the right to vote . Unless issues of medical treatment , the custodial placement or representation in court proceedings should be content of proxy, they must be explicitly provided in the proxy. A so-called general power of attorney does not include these matters (cf. § 1904 Paragraph 2 BGB, § 1906 Paragraph 5 BGB, § 51 Paragraph 3 Code of Civil Procedure - ZPO).

The approval reservations of the guardianship court of the BGB in the case of dangerous medical treatment and deprivation of liberty ( § 1904 , § 1906 BGB) for the guardian also apply to the authorized representative. The decision on closed accommodation , the decision on the implementation of measures similar to accommodation , such as being tied to the bed, buckling up in a wheelchair , sedation with medication or consent to treatments that are considered dangerous, may therefore only be made with prior judicial approval.

If there is a risk associated with postponing the accommodation-like measure - for example, if a nursing home resident falls out of bed with the risk of a fracture of the femur - the authorized representative can make a provisional decision on the attachment of the bed rails (accommodation-like measure) and is also entitled to a court decision immediately apply if the measure is to take longer (more than two days) or has to be carried out regularly (e.g. always at night).

Practical experience suggests that power of attorney relating to asset transactions should be publicly certified, because rental companies and banks in particular are often not satisfied with privately written documents.

Sometimes banks do not easily recognize notarial powers of attorney. You request - unlawfully - the granting of a power of attorney on the bank's own forms including a signature check by the bank. The pre-printed sample form for a power of attorney developed by the Federal Ministry of Justice is to be generally accepted in future. A public ( i.e. notarized ) power of attorney is always required for real estate transactions, numerous transactions with companies and consumer credit agreements.

Appoint several authorized representatives

In a health care proxy you can appoint several people as authorized representatives: Either with several individual powers of attorney, a double power of attorney or a substitute power of attorney. While a substitute power of attorney offers additional security through a substitute proxy, a double power of attorney defines two proxy agents who can control each other. Individual powers of attorney, on the other hand, are useful in order to designate different authorized representatives for different areas - in order to avoid confusion and discrepancies between the authorized representatives, these areas of representation should be clearly delimited from one another.

Revocation and termination

In the Federal Republic of Germany, the power of attorney can be revoked at any time without having to comply with a specific form ( § 168 , § 671 BGB). After the principal becomes incapable of doing business , the agent can no longer terminate the contract without further ado ( Section 671 (2) BGB). Instead, he must contact the supervisory court so that it appoints a supervisor, to whom the termination of the power of attorney is declared. A supervisor appointed in such a case can in turn revoke the power of attorney if the proxy is no longer able or willing to perform the power of attorney. According to recent rulings of the BGH, this authorization must result directly from the wording of the supervisor task group.

In Austria the termination of a health care proxy by the proxy is expressly permitted after the principal becomes incapable of doing business, but without a corresponding regulation as to the form in which this has to be done.

Difference to living will and care will

Be distinguished from the enduring power of attorney is the living will , in which the operative in advance gives instructions as to his will as patient medical treatment would be if he is no longer able to decide for themselves about it. The doctor and the authorized representative or supervisor must act in accordance with the provisions of the living will. The binding of the authorized representative or supervisor to the living will results from September 1, 2009 from § 1901a BGB , that of the doctor since 2013 from § 630d BGB.

The distinction between health care proxy and care decree is based primarily on the fact that the health care proxy relies on unlimited and uncontrolled trust, while the care decree only takes effect if the court considers it necessary, in accordance with the health situation of the person making the decision, that the authority to act is given by the person making the decision and this authority is then under judicial control. The nominee is then appointed by the court as a supervisor. This means that the supervisory court monitors compliance with the order and z. B. on every entry and exit on the accounts of the person disposing, if the proposed person does not belong to the group of so-called exempt supervisors. This exempt group of people is usually only liable to bill the disposer or his heir.

A living will contains instructions to the proxy or supervisor on how certain health issues should be decided. In relation to the care will, the living will is partly congruent with it. A health care proxy cannot replace the living will. The Federal Chamber of Notaries and the Federal Medical Association have recommended always combining a living will with a power of attorney, because the chosen person of trust as authorized representative can articulate the patient's will to the doctor and, if necessary, enforce it.

A possible disadvantage of the supervision decree can be that the supervisor is paid. There are legal regulations for paying the supervisor. A professional supervisor with a university or technical college education receives z. B. currently 44, - € / hour. within the framework of a flat rate remuneration that has been regulated since July 1, 2005. The volunteer supervisor (friend, family member, other third party) receives an expense allowance of 399.00 € / year (since August 2013). This is tax-free up to EUR 2,400 annually.

Another thing is who pays the carer. This is based on the standards of social welfare law . If the disposer is penniless, the judicial treasury has to pay the supervisor. If the disposer is wealthy, he must pay the supervisor himself. In the case of the power of attorney, on the other hand, a payment from the state treasury is never considered.

The power of attorney should therefore also contain a regulation on the remuneration and expenses of the authorized representative, but does not have to. In the case of the power of attorney, the principal may be required to reimburse the authorized representative for cash expenses and then also for time expenditure (remuneration) if the assumption of the power of attorney has been agreed as an agency agreement for a fee .

advantages

One advantage of the power of attorney is that the proxy, who has knowledge of the power of attorney, can act as soon as he becomes aware of the emergency situation and does not first have to be appointed by the court, as is the case with care . The authorized representative is also not subject to the control of the supervisory court in asset management like a court-appointed supervisor.

Depending on the wording of the power of attorney, the proxy can dispose of the full extent of the principal's assets and does not need to account to outsiders. In contrast to a legal guardian, it is possible for the person authorized by a legal transaction to transfer assets to future heirs within the framework of the anticipated succession and thus to optimally use tax-free amounts within the ten-year period for gifts / inheritance. There is an obligation to provide information to the principal and, after the end of the activity, a disclosure obligation.

The advantage of the health care proxy over the care is also to be seen in the fact that the granting of power of attorney expresses the basic right to self-determination. In a supervision order, the court is only informed of who is desired as a supervisor. The care decree is therefore not necessarily binding.

Another advantage can be the better social acceptance compared to childcare. Depending on the situation, a health care proxy is preferable to care for reasons of self-esteem .

The advantage of preventive care compared to care without a preventive provision is that it can be tailored to the personal situation. Another advantage is that it can be withdrawn at any time, as long as you are still able to do so ( legal capacity ).

disadvantage

The lack of control can be a disadvantage of the power of attorney if, for example, the authorized family member, due to a new situation, such as a new partnership, pursues interests other than those foreseeable by the principal. Then, under certain circumstances, the guardianship court can even appoint a guardian despite the power of attorney if the authorized representative is unsuitable to deal with the affairs of the person concerned, in particular because it is to be feared that the person’s interests in the person’s interests will create a concrete danger to the person’s wellbeing . Therefore, should the person concerned if necessary, a control representative be appointed when there is no absolute confidence on the person of the authorized person is. Even legally appointed guardians often have the opportunity to embezzle the assets of the guarded due to inadequate control by the courts.

The health care proxy also has less acceptance in legal transactions than a supervisor appointed by the court. However, power of attorney must also be accepted by banks. The previous practice that banks also require their own account authorization is no longer legal today. In any case, if the power of attorney has been notarized, a bank may not demand any special bank powers of attorney.

Usually, a health care proxy is made with the fear that a third party could be appointed as a supervisor . However, this is not common practice, as the supervisory court is legally obliged to give priority to the spouse and first-degree relatives when selecting a supervisor ( Section 1897, Paragraph 5 of the German Civil Code).

A health care proxy does not protect the person concerned if they conclude business to their disadvantage in the state of legal incapacity. Then the legal incapacity must be proven. This is only omitted if care is set up with the reservation of consent .

Submission to the supervisory court

Both the power of attorney and the supervision order must be submitted to the supervision court if one is aware of judicial supervision proceedings ( Section 1901c BGB). If you have a power of attorney, you may not need to set up care ( Section 1896 (2) BGB). A supervision order can also contain binding requests for the selection of supervisors to be taken into account by the court (Section 1897 (4) BGB).

Central pension register of the Federal Chamber of Notaries (BNotK)

The Federal Chamber of Notaries has kept the Central Preventive Register since 2004 , in which power of attorney and care directives can be entered, also in connection with living wills , in order to make it easier for the care courts to find an agent if necessary or to avoid a procedure for the appointment of a carer by the care court . At the end of 2015, 3 million pension certificates were already registered there. The register is queried more than 20,000 times a month by the supervisory court practice.

The statutory supervision procedure is subsidiary , which means that a supervisor should only be appointed if there is a need for it; if there is an effective health care proxy, this need generally does not exist.

The Central Pension Register was set up independently by the Federal Chamber of Notaries and was only open for the entry of notarized powers of attorney. Since March 1, 2005, as a result of a change in the law and the creation of a precautionary register regulation ), privately written power of attorney can also be registered. Since September 1, 2009, care orders can also be reported. Registration is subject to a one-off fee (on average approx. € 13.00). Information from the register is only given to the supervisory court and the regional court as the court of appeal. With the registration, a ZVR-CARD is issued, with which reference is made to the pension certificate and the persons of trust. The Federal Chamber of Notaries offers a free service hotline.

A number of private services and associations also offer the registration of health care proxies and living wills / care directives for a fee. While the central pension register will almost certainly be queried by the court if necessary, this is unlikely with private providers. However, care authorities , doctors and hospitals do not currently receive any information from the central pension register, while private registers usually offer the possibility of inquiries for everyone. Again, however, it is not certain that such documents will be found. In addition, if in doubt, a doctor has to consult the supervisory court anyway.

In some federal states (currently Bremen , Hesse , Lower Saxony , Saarland , Saxony-Anhalt , Thuringia ), care orders (no power of attorney) can be filed with the care courts. In Bavaria and Saxony , the deposit option was abolished and the registration of the document in the Central Pension Register of the Federal Chamber of Notaries was recommended.

The pension certificate is not deposited with the Federal Chamber of Notaries. This should be in the possession of the person you trust so that you can identify yourself to doctors, authorities or banks. Registration also does not replace the granting of the power of attorney itself.

Power of attorney in Austria

In the Republic of Austria, with the entry into force of the Guardian Law Amendment Act on July 1, 2007, the power of attorney is legally established as the primary legal institution vis-à-vis a guardianship . The regulations can be found in § 284f , § 284g and § 284h ABGB .

As of July 1, 2018, the new Adult Protection Act, which regulates the representation of persons of legal age , will apply . Basically, in accordance with the Adult Protection Act, there are four pillars of the representation of adults in need of support, the tried and tested power of attorney, additionally the newly introduced elected adult representation , the legal adult representation (previously authorized to represent next of kin) and the judicial adult representation (previously guardianship). The power of attorney is intended to maintain the autonomy of the person represented and representation can take place independently of the state or of a procedure for adult representation. This means that the highest level of self-determination is fundamentally implemented, no elected, legal or judicial adult representation is necessary, and state influence is reduced to a minimum. The judicial control or influence essentially only relates to the approval of medical treatments in the event of dissent between the representative and the person represented and permanent change of residence abroad, which means that legal care can be resolved "within the family" with a legally valid health care proxy.

With the power of attorney in particular a default can be given which people or adult protection teams Adults representatives should be, or even those to be excluded. However, the court is not bound by this specification (wish) of the person concerned. The insured event occurs when the principal loses the decision-making ability required to handle the matters entrusted to it, regardless of the age limit for the insured event. Limitations of the ability to express themselves should not cause the contingency to occur.

With the Adult Protection Act, it is mandatory that the health care proxy is drawn up personally and in writing before a notary, lawyer or adult protection association after the instruction on the legal consequences (Section 262 (1) ABGB new version). The entry in the Austrian Central Representation Directory (ÖZVV) is mandatory (Section 245 (1) ABGB) so that the power of attorney can become effective at all (Section 263 ABGB new version - required only optional until July 1, 2018). Adult protection associations should also show alternative paths in the context of personal advice and thus initiate or suggest other forms (up to the involvement of the guardianship court or suggestion of legal adult representation) as part of the clarification.

See also

literature

  • Gabriele Müller, Thomas Renner: Care Law and Preventive Disposals in Practice , 5th edition, 2017, ISBN 978-3-452-28855-4
  • Siegfried Platz: The power of attorney in banking and savings bank practice , 2nd edition, Stuttgart 2007, ISBN 978-3-09-305763-2
  • Matthias Winkler: Advance directives - living wills, power of attorney, care and organ directives ; 3rd edition, Munich 2007, ISBN 978-3-55841-2

Web links

Individual evidence

  1. ↑ Administrator Law Amendment Act 2006 (Austria) (PDF; 131 kB)
  2. ^ [1] , power of attorney: When it makes sense to go to the notary from March 18, 2014, accessed on October 10, 2014
  3. ↑ a b see Tersteegen, NJW 2007, 1717
  4. ^ Federal Chamber of Notaries
  5. ↑ Alexander: Power of attorney. In: Anwalt.org. Accessed April 26, 2019 (German).
  6. ↑ Capersville Interactive: Double Power of Attorney - Inheritance Law AZ - Inheritance Law Glossary | NDEEX. Retrieved April 26, 2019 .
  7. ↑ Several people in the health care proxy: You have to pay attention to this! Retrieved April 26, 2019 .
  8. ↑ cf. Section 1908i Paragraph 2 Sentence 2 BGB
  9. ↑ ( § 1835a BGB)
  10. ↑ (§ 3 No. 26b EStG)
  11. ↑ ( SGB ​​XII ) (see § § 1836  ff.BGB)
  12. ↑ ( § 1836d BGB)
  13. ↑ ( Reimbursement of expenses , Section 670 BGB)
  14. ↑ § 675 BGB
  15. ↑ in the context of § 666 BGB
  16. ↑ according to § 667 BGB
  17. ^ BGH: To appoint a supervisor despite a power of attorney. BGH, July 19, 2017, accessed on November 17, 2017 .
  18. ↑ (§ § 1896  ff. BGB)
  19. ↑ (Amendment of the Federal Notary Code (§ § 78a  ff. BNotO)
  20. ↑ online
  21. ↑ by calling 0800-3550500 (7:00 a.m. to 5:00 p.m., on Fridays until 1:00 p.m.)
  22. ↑ See e.g. B. the decision of the Supreme Court on 6 Ob 145 / 18v.