Living will and health care proxy instead of care and rationing?

– How citizens can better protect themselves from caring coercion and arbitrariness at an early stage –

Federal and state ministries, as well as charitable organizations, offer a wealth of different forms to help people help themselves when setting up a patient’s will and health care power of attorney. § Section 1901a of the German Civil Code (BGB) stipulates: “No one may be obliged to draw up an advance directive. The establishment or presentation of an advance directive may not be made a condition of the conclusion of a contract.” A new law on the treatment of patients in psychiatric hospitals allows compulsory treatment.

Self-determination or care?

The normal case without a health care proxy is the appointment of a guardian. Spouses, like other relatives, have no legal right of representation. This can be understood as an expression of distrust towards the family. If a person concerned determines that the spouse or a child should be appointed as guardian, the guardianship court may fail to do so because of a lack of suitability or a conflict of interests. If provision has been made by a power of attorney, the court may appoint a controlling guardian who will then revoke the power of attorney, opening the way for the appointment of a guardian.

In practice, two trusted people should be involved – one to represent, and another to monitor. The latter is also recommended so that the authorised representative is not later confronted with accusations from the heirs, for example that too much money was spent for the benefit of the principal.

Credit institutions do not recognise health care proxies

Many lending institutions are not interested in the power of attorney forms of the ministries – they insist that the in-house forms be used. However, this also offers the opportunity for arrangements such as contracts for death or, for example, powers of attorney up to or from death, as well as those beyond death. Essential, and not offered by any institution, is a corresponding mandate for the authorized representative to regulate the content of his activities and conceivable delegation of partial tasks to specialists.

The assignment need not be altruistic in nature as an honorary position, but may otherwise conflict with the Legal Services Act. However, an assignment should at least also regulate the reimbursement of outlays and expenses so that the heirs will also remain liable later on.

Implementation of the living will – cost lump sums and other obstacles

The realisation of the wish for pain treatment (palliative medicine) or a stay in a hospice can fail in terms of time because the statutory health insurance only reimburses certain lump sums. However, the individual dying process cannot be calculated as an “average length of stay”, unless the living will opens the way to a more or less passive euthanasia, as it were as a “case-plan compatible early death”.

The blanket decision “no artificial fluid supply” leads to a more or less agonizing death by dehydration. The specification “no apparatus medicine” can be suitable to “spare” the health insurance company years of expenses and the affected person a further existence with joy of life. Worth reading are for instance the explanations of Father Walter Ramm (in the Internet) about the living will, together with organ donation and brain death diagnosis. Living wills should be renewed every one to two years, according to the respective state of health and in knowledge of alternative courses of disease and therapy alternatives. Medical and legal advice can help prevent errors and misunderstandings.

Forced treatment and other cruelties

A court-appointed guardian ad litem is involved in the decision on the appointment of a guardian and the closed accommodation, who is to safeguard the rights of the person concerned. How this is to be done effectively when the court selects its own controller remains a mystery to the legislature to this day. Health care proxies and guardians have a special responsibility with regard to the up to 150,000 compulsorily treated patients nationwide each year – although around half of the patients in psychiatric hospitals probably do not have a guardian. Critics fear that the forced treatment now permitted by law violates the UN Convention on the Rights of Persons with Disabilities.

It is problematic that anyone can be appointed as a guardian – there is in fact hardly any obligation, for example, to provide orientation in the bestseller “Bitter Pills” about the risks and side effects of caring coercion. Psychiatry sometimes becomes a substitute for costly care at home for elderly patients, especially those suffering from dementia – a relief for social welfare and a burden on health insurance funds in return.

Confidants with assertiveness

Conditions need not be better in nursing homes when residents are given chemical restraints via willing GPs or are confined to a chair or bed without a carer or court permission. Apparently scarce funds of the cost units or lack of personnel in hospitals and old people’s homes lead again and again to so-called care scandals, including the suspicion that every second stomach tube only compensates for the lack of nursing staff – without medical necessity.

On the other hand, there are said to be old people’s homes where more than 80% of the residents have not seen a dentist for years or where starvation or dying of thirst is the order of the day. At all times, care must be taken to ensure that the persons of trust are sufficiently strong-willed to implement the wishes of the person concerned. Relatives and persons in a position of trust should be able and willing to obtain professional orientation at any time, for example in order to be able to check care documentation in a nursing home or hospital.

Liability under public law

Very few lay carers and health care proxies are aware that they are liable with their own private assets if, for example, applications and notifications to the social welfare office, accident and health insurance companies or pension insurance institutions are not submitted or not submitted on time. In case of doubt, this also includes a responsibility for the correct tax declaration, including its often necessary correction for up to more than 10 previous years.

Not infrequently, there will also be duties to notify privately concluded insurance policies, often with the need to determine the insurance requirements and any gaps in coverage. Competence in the circle of friends can relieve here just as much as the possibility of support by specialists, so that the well-being and welfare of the person concerned is always the focus.

Example case: Allegation of unfavourable insurance

A caregiver, with the assistance of an insurance broker, had paid a portion of a 72-year-old’s assets as a single premium into a private annuity policy that would pay for life. The judge compared the contribution with the pension payments to be expected over the remaining statistical life expectancy and concluded that this was a loss-making business. It was of no use to prove that the annuity insurance was even favourably priced in line with the market, because on average annuity insurance policies cannot be expected to generate any profit for the insured, since insurers, as profit-oriented enterprises, need this themselves.

It was not until an actuarial report was commissioned by the guardian that it could be shown that the mortality table before the judge underestimated life expectancy and that there was in fact a non-negligible chance for the insured to live long enough for the insurance to pay for itself. This is then sufficient for the reasonableness of the annuity insurance because of the objective of covering the longevity risk. Otherwise, the guardian might have been liable for the loss in the event of premature death or lack of current funds as a result of being tied up in the pension scheme.

by Dr. Johannes Fiala

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About the author

Dr. Johannes Fiala
PhD, MBA, MM

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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