No matter what kind of helpless situation it is, in order for the will to be carried out one day in the way you want it to be, man needs fellow human beings by his side. Later, the affected person is often unable to assert himself or can do so only with difficulty. Since medical and legal arrangements are involved, it is advisable to implement things together with a specialist and lawyer. Later, when it comes down to it, their help may become necessary again, so that one’s own will is actually put into practice.
It is very important that the documents we are dealing with should be of lasting value. This requires a regular – often annual – “inspection”, i.e. checking and, if necessary, renewal. This review is already recommended because life changes, often also the state of health – all these changes can then also make adjustments necessary. Talking to people who are or have been in homes and hospitals can lead to some regulation points being recognised as being of great personal importance.
In this document, you specify to the doctor who will treat you in the future what you would wish today if you were unable to make a decision. For the enforcement it often requires also a person of trust authorized for the precaution. If there is more than one person, the relationship between them must also be regulated. In addition, any remuneration or compensation is to be regulated, as well as the question of expenses, if a lawyer is to be able to help the trusted person in the enforcement of your will.
Beware of forms
Hardly any form can reflect your personal motives, your experiences and insights. General phrases such as “dignified treatment” or “no apparatus medicine” leave many possible interpretations; therefore, such vague or indefinite formulations are much less likely to be respected. Therefore, it makes sense to have the doctor and lawyer participate in the formulations. It is no secret that many organisations as well as professional lawyers keep a wealth of different form samples ready – you should have these explained to you in detail before using them, so that your real will can be seen by everyone later on. It is essential that it becomes clear how you have dealt with your specific disease situation, i.e. what information you have as a 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. Forms for ticking off usually have a similarly poor effect.
Beware of generalities
It can be devastating in its effect if “artificial feeding” or other measures are generally rejected. Nursing and medical measures should be considered in concrete terms, but also the danger that “the discontinuation of treatment for cost reasons” could thus be facilitated.
Correctly formulate and adapt orders
Wishes and values, but also experiences of illness lead to changed ideas – in this respect, regular examination and, if necessary, discussion with experts is advisable. In addition, certain measures may be specifically required. One could think of “the right to freedom from pain” or end-of-life care. Today, palliative care, hospice care and pain therapy are also in line with the times. 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 authorised representative 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 practically absent.
As far as this is desired, nobody is bound to it in Germany – it would be punishable. most information about alternatives abroad can be found on the Internet. In principle, the care of property is distinguished from the care of the person. 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 credit facilities are to be used, a notarial form is necessary. Here, too, it is necessary to regulate whether compensation is to be provided and how expenses are to be dealt with. If the core and focus of a task lies in the legal area, delegation to a lawyer or notary should be provided for. And finally, it would have to be reconsidered how the proxy is now to be controlled – especially if one’s own forces are no longer sufficient for this? Providing two or three people as a team with different tasks might be the safest way.
Deposit and withdrawal of documents
Anyone who makes a will is well advised to place it in the custody of the probate court – that way it cannot get lost. Powers of attorney can be revoked by you as long as you are legally competent – for the time after that, a control person may be authorised to do so. A patient’s will is only respected when you yourself are no longer capable of making decisions. In addition to the will, depending on the federal state, other documents can also be deposited with a register or court. The possibilities should be examined and considered on an individual basis – some “depositories” are reportedly not automatically queried by either clinics or courts.
It’s especially difficult when it comes to supervision. 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 then considers the person provided by you to be suitable or appoints a foreign person (professional guardian) is another matter. 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.
In doubt for freedom
Both human dignity and self-determination are enshrined in our Basic Law. To arrange things then by oneself is a possibility, not a compulsion to distance oneself from the general views. If the saying goes “you made your bed, now sleep in it”, this is even more true if you find yourself in a helpless situation.
by Dr. Johannes Fiala
from www.business-on.de (published on 16.02.2007, Cologne/Munich, 16.02.2007 12:59 o’clock)
www.lv-h.de (published in VDL Journal 2/2007, page 32)
published in Propraxis Gynaecology March 2007, page 24
published in PROPRAXIS KARDIOLOGIE March 2007, 24)
published in PROPRAXIS NEUROLOGIE/PSYCHATRIE March 2007, page 24
published in (PROPRAXIS ORTHOPEDIA/RHEUMATOLOGY March 2007, page 20
published in PROPRAXIS ONKOLOGIE/HÄMATOLOGIE March 2007, page 30
in www.landpost.de (published in Landpost 37/2007, page 28)
in www.forum-medizin.de (published in Die Naturheilkunde 2/2007, page 30)
in www.dzw-online.de (published in Die Zahnarzt-Woche 19/2007, page 32)
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About the author
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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