General and health care proxy

If you ask yourself whether you need a general power of attorney and health care proxy, the answer will usually be "yes". If, for example, you have an accident and are in a coma or are incapacitated for other reasons, no other person can act on your behalf and make important decisions without a power of attorney. It will not help you in such a situation even if you are married. Marriage alone does not entitle your spouse to take legally binding actions on your behalf, such as concluding contracts for a stay in a care home or terminating existing contracts, paying bills on your account, selling your car or a property, etc.

The establishment of a power of attorney has two main objectives: (1) you put a trusted person (or persons) close to you in a legal position to act on your behalf and (2) you prevent the appointment of a (non-family) guardian who is subject to the supervision and control of the guardianship court. The guardian must provide the court with an annual account of your assets, i.e. disclose all income and expenditure. Even if your spouse is appointed as a guardian by the court, the very idea of full transparency vis-à-vis the court can cause unease. If you have a general power of attorney and health care proxy, no guardian will be appointed.

The person(s) you wish to authorize depends on your level of trust. We generally recommend appointing several authorized representatives at the same time. This is because if, for example, you have an accident together with your authorized representative or the authorized representative is not available for other reasons (stay abroad or similar), the main objectives mentioned above can only be achieved if at least one other person can act on your behalf. Therefore, in addition to the spouse, the adult children are often authorized. You should also make sure that each of the authorized representatives is authorized to represent you individually, i.e. that only the decision and action of one authorized representative is important. Otherwise, if the authorized representatives have joint power of representation, you can only decide and act jointly. If not all authorized representatives can be reached in an emergency or if there are disagreements between them, this in turn leads to incapacity to act.

Depending on the relationship with the person you are authorizing, it is advisable to agree internal regulations between the principal and the authorized representative in addition to the actual power of attorney. Here you can specify the conditions under which the authorized representative is entitled to make use of the power of attorney granted to them.

In principle, you do not have to draw up the power of attorney in any particular form. For example, a simple written and signed general power of attorney and health care proxy is sufficient for most acts. However, it is advisable to have the power of attorney notarized or at least certified. On the one hand, certain legal transactions can only be carried out by the authorized representative if they present a notarized power of attorney. This applies, for example, to real estate transactions such as the sale of a property. On the other hand, a notarized power of attorney is held in much higher esteem by the public. Banks, authorities, etc. intuitively place more trust in a notarized power of attorney than in a simple written power of attorney. You should also issue a separate bank or account power of attorney on the relevant bank form. In practice, this is the easier way than discussing the effectiveness and scope of a notarized or simple written power of attorney with the bank later on.

You should keep the power of attorney in a place that the authorized representative knows and to which you have easy access. Alternatively, you can also hand the power of attorney document to the authorized representative or, in the case of a notarial power of attorney, have a copy issued to the authorized representative. It is also possible to have the power of attorney registered in the Central Register of Powers of Attorney of the Federal Chamber of Notaries. The advantage of registration is that the guardianship court is informed if necessary, so that no guardianship proceedings are opened.

The above explanation is intended to provide an initial insight into the topic of general and precautionary powers of attorney. It is not a substitute for advice in individual cases.

If you have specific questions or would like an assessment of your case, we will be happy to provide you with an initial consultation at any time. The costs of such a consultation amount to a maximum of EUR 190.00 plus VAT. The length of the consultation and the size of your assets are irrelevant.

Status: 15.03.2023