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 on, when it really matters, their help may become necessary again, so that one’s own will is really put into practice. The most important thing is that the documents we are talking about should be permanent. This requires regular – often annual – “inspection”, i.e. checking and, if necessary, renewal. This review is already recommended because life changes and often also the state of health – all these changes can then also make adjustments necessary.
In this document, you specify to the doctor treating 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 settled, as well as the question of expenses if a lawyer is to assist the trusted person in enforcing his or her will.
Beware of forms
Hardly any form can reflect your personal motives, your experiences and insights. General phrases such as “would- healthy treatment” or “no apparatus medicine” leave many possible interpretations; therefore, such vague or indeterminate formulations are much less likely to be respected. For this reason, it makes sense to have a doctor and a lawyer involved in the formulations. It is no secret that many organisations, as well as professional lawyers, have a wealth of different sample forms ready – you should have these explained to you in detail before using them, so that your real will is clear to 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 reasons of cost” 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 be free of 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 proxy or the heirs from lengthy discussions later on. A general practitioner’s or notary’s or lawyer’s certificate on this issue is usually worthless in court because the expertise for such medical issues is often practically absent.
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 main focus of a task is in the legal field, delegation to a lawyer or notary should be provided for. And finally, it must also be considered how the proxy is 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.
Deposit and withdrawal of documents
Anyone who makes a will is well advised to place it in safekeeping with 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 of law and taxation then considers the person you have provided as suitable or appoints a third party (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 then sort things out for 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.
Dr. Johannes Fiala, www.fiala.de
Tips on the topic Further information on the entry of the health care proxy in the central register of health care proxy of the Federal Chamber of Notaries and a sample health care proxy can be found on the website www.bestatter.de in the member area under the heading “Service”. (Tel.: 0211 / 160 08-11, e-mail: email@example.com).
(Funeral Culture 4/2007, 62)
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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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