contingency planning

Providing for emergencies is a subject that is not so easy to deal with. Creating capital reserves is probably the simplest option. But what happens when a person finds himself in a helpless situation in which he can no longer act or decide on his own?
Advance directives are legal and medical arrangements that you should discuss with a lawyer and specialist. And even a one-time determination does not form a sufficient basis for the future. Crucially, the documents we are talking about should be permanent. This requires a regular – often annual – “inspection”, i.e. checking and, if necessary, renewal. The revision is recommended, because life changes, often also the state of health and all these changes make an adjustment necessary. It is helpful to talk to people who are or have been in homes or hospitals. This will enable you to identify many an important regulation point for yourself.
With the living will, you specify to the doctor treating you in the future what you would wish today in the event of your incapacity to make decisions. In order to enforce these ideas, it is often necessary to have a person authorised to make provisions for the future. If there are several, the relationship between them must be regulated. Also think about any allowances or compensation you may receive. It should also be clarified who is to bear the expenses that may arise if a lawyer has to be called in to enforce your claims. There are numerous forms available for the formulation of living wills, which are used by organisations as well as by professional lawyers. The forms are hardly suitable to reflect your personal motives, experiences and insights. And general phrases such as “dignified treatment” or “no apparatus medicine” leave many possible interpretations. It is therefore imperative that you have the use of the forms explained to you in detail in advance, so that your real will can be seen by everyone later on. It must be clear from the decree that you have dealt in detail with your specific illness situation, i.e. what knowledge and information serves as the background for your decisions. Otherwise, the attending physician may later say that he does not feel bound by your instructions because the essential things were not considered – or were not put down on paper.
Wishes and values, but also experiences of illness lead to changed ideas – in this respect, regular examination and discussion with experts is advisable. In addition, you can specifically request certain measures. One could think of “the right to freedom from pain” or end-of-life care. Today, palliative care (treatment of a patient with a non-curable advanced disease), hospice care or pain therapy are also contemporary. It will also be decisive that the legal capacity or the capacity to understand, but also, if applicable, the testamentary capacity is confirmed by a medical specialist. This saves the proxy or the heirs from lengthy discussions later on. The certificate of a general practitioner or a notary or lawyer on this question is often worthless in court, because the expertise for such medical questions is often missing.
Basically, the care of assets is distinguished from the care of persons. There are areas of responsibility in both areas, for example the right to determine the place of residence or dealings with social welfare agencies, insurance companies and banks. The proxies need powers of attorney in the original. If real estate is involved or loans, a notarized form is necessary. Here, too, it is important to regulate whether compensation is provided for and how expenses are to be handled. If the core and focus of a task is in the legal field, delegation to a lawyer or notary should be provided for. And finally, it would have to be considered how the proxy is now to be controlled – especially if one’s own powers are no longer sufficient for this. Providing two or three people as a team with different tasks might be the safest way.
Anyone who draws up a will is well advised to place it in safekeeping with the probate court – that way it cannot get lost. You can revoke powers of attorney as long as you have legal capacity – for the time after that, a control person may be authorized to do so. A patient’s will only comes into focus when you yourself are no longer capable of making decisions. In addition to the will, you can – depending on the federal state – also deposit other documents with a register or court. You should check and consider the possibilities on an individual basis – some “depositories” are reportedly not automatically queried by either clinics or courts.
The regulations are particularly difficult in the case of a care directive. This only comes into question if no proxy is available (any more). You can “wish” for a trusted person who is then more or less controlled by the court. Whether the court considers the person you have chosen to be suitable or appoints someone else (professional guardian) is another matter. The drafting requires special care if you do not want to give the court more discretion than necessary. Again, qualified advice is necessary so that your “informed” decision is also documented.
Dr. Johannes Fiala
(Design & Sell 4/2007, 28)

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About the author

Dr. Johannes Fiala Dr. Johannes Fiala

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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