In order for the will of a seriously ill patient, who may be incapable of making decisions, to be implemented in the way he or she wishes, the person needs fellow human beings at his or her side. The Munich lawyer and provision specialist Dr. Johannes Fiala gives practical advice on living wills, health care proxy and care proxy.
Author Dr. Johannes Fiala Attorney at Law
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, a remuneration or compensation may have to be arranged, as well as the question of expenses if a lawyer is to be able to help the trusted person to enforce your will. 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 formulations are respected much less frequently. Therefore, it makes sense to have the doctor and lawyer participate in the formulations. It is no secret that many organisations, but also professional lawyers, have a wealth of different form samples ready – you should have these explained to you in detail before you use 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. 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 reasons of cost” could thus be facilitated.
Wishes and values, but also the experience 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, hos – pital 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 test animal 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 missing.
In principle, the care of property 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 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. 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 you have in mind to be suitable or appoints someone else (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. 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.
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About the author
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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