Outlook for the future: Emergency representation law for spouses Outlook

Under current law, spouses can neither make decisions about medical treatment for their partner who is no longer able to act for themselves, nor represent them in legal transactions, unless they have been appointed as their partner's legal guardian or have been authorized by them through a power of attorney. In practice, this is often met with a lack of understanding by those affected and will soon change.

1. outlook

A new draft bill from the Federal Government to reform guardianship and care law (BT printed matter 564/20) is intended to regulate a temporary right of representation for spouses. The Bundesrat approved the law at its meeting on 26.03.2021, meaning that the new Section 1358 BGB will come into force on 1.1.2023.

2. content

Pursuant to Section 1358 (1) BGB, one spouse will be entitled to take care of health care matters for the other because they are unable to legally take care of them themselves due to unconsciousness or illness. It is a right of emergency representation, as it can only arise in the event of an acute health impairment, i.e. due to illness or accident. It is therefore not intended to replace cases of care or precautionary power of attorney. Furthermore, it only gives the spouses a right and does not constitute an obligation for a spouse to exercise their right of representation.

3. scope

§ Section 1358 (1) BGB provides an exhaustive list of areas in which the spouse can exercise his or her right of representation as a representative. In addition to medical examinations (No. 1), this also includes the conclusion of contracts (No. 2), the assertion of claims (No. 4) and the decision on measures involving deprivation of liberty (No. 3). This may also include the urgent and medically necessary treatment of an illness that is diagnosed for the first time.

4. restrictions

Section 1358 (3) BGB restricts the comprehensive right of emergency representation. This is excluded if the spouses are separated, if it is known that emergency representation has been refused in advance, if someone else has been authorized or if a guardian has been appointed. Furthermore, the right of emergency representation is limited in time. It only exists for 3 months from the established date. The right of representation also ends automatically as soon as the requirements under para. 1 are no longer met and the represented person is able to manage their own affairs again.

5 Effects on doctors

On the one hand, treating physicians are released from their duty of confidentiality towards the representing spouse by law pursuant to § 1358 para. 2 BGB. In addition, the attending physician is subject to documentation and information obligations pursuant to Section 1358 (4) BGB:

He must

confirm in writing the existence of the requirements for a right of emergency representation pursuant to Section 1358 (1) BGB and the time of occurrence (pursuant to Section 1358 (4) No. 1 BGB),
submit this confirmation to the representing spouse together with a declaration of the requirements pursuant to Section 1358 para. 1 BGB and the grounds for exclusion pursuant to Section 1358 para. 3 BGB (pursuant to Section 1358 para. 4 no. 2 BGB),
and obtain a written assurance from the representing spouse that the right to represent the spouse has not previously been exercised and that there are no grounds for exclusion (pursuant to Section 1358 (4) no. 3 BGB),

Such a document must then be handed over to the representing spouse for the further exercise of the right of representation. These documentation and information obligations also mean additional time and personnel costs, which means that clinics and doctors will have to deal with a greater administrative burden.

6. advantages

The right of spousal representation transfers comprehensive decision-making authority to the spouse. This can facilitate treatment in acute emergency situations. The attending physician at the clinic has a fixed contact person who makes decisions on medical measures. There is also legal clarity thanks to the release from the duty of confidentiality. In addition, the protection of the patient's right to self-determination is satisfied by setting a time limit. The doctor is spared having to provide a medical opinion to the guardianship courts and relatives do not have to deal with formalities.

7. criticism

Shifting the decision-making power to the spouses also harbors dangers, however, because the apparent exemption of the doctor from deciding whether and how a measure should be taken can have the opposite effect in terms of liability law. The power of representation takes effect through the medical certificate of § 1358 para. 4 BGB and is a legal authorization of the spouse on which the doctor relies.

The doctor has no obligation to check and investigate any grounds for exclusion, as otherwise the purpose of an uncomplicated authorization to represent would be defeated. The doctor must rely on correctness, which at the same time harbors a great risk of abuse.

If the requirements are not all met, the spouse would be acting as a representative without power of representation, meaning that their consent would be invalid. The doctor would be in danger of carrying out an unjustified, unauthorized medical intervention. Alternatively, justification by means of presumed consent would no longer be possible retrospectively, as the patient's presumed will was not determined due to Section 1358 BGB.

The doctor therefore bears an incalculable risk as to whether or not the conditions for a reason for exclusion are present. Under criminal law, there may be an unavoidable error in accordance with Section 17 StGB, as the obligation to investigate is explicitly excluded. Under civil law, it would have been necessary to include a good faith protection for doctors in the statutory regulation in order to circumvent liability law problems.

Date: 13. Sep 2021