A power of attorney and a living will govern representation and medical care in the event that a person can no longer make decisions independently. This article explains the content, differences and advantages of notarial authentication.
What Is a Power of Attorney?
A power of attorney (Vorsorgevollmacht) authorises a trusted person to make legally binding decisions on behalf of the principal when the latter is no longer able to do so due to illness, accident or old age. Without such a power of attorney, the guardianship court will appoint a guardian -- even if close relatives are available.
A power of attorney may cover various areas:
- Financial matters (banking, property management)
- Healthcare (consent to medical treatment)
- Determination of residence (decisions on place of residence, care facility)
- Representation vis-a-vis authorities, insurers and courts
What Is a Living Will?
A living will (Patientenverfügung) is addressed to the treating physicians and sets out which medical measures are desired or refused when the person concerned can no longer express their own wishes. It is governed by § 1827 BGB (formerly § 1901a BGB).
Typical provisions include:
- Wishes regarding life-prolonging treatment
- Pain therapy and palliative care
- Artificial nutrition and ventilation
- Resuscitation measures
Why Is the Notarial Form Advisable?
A power of attorney is, in principle, also valid in private written form. Nevertheless, notarial authentication offers considerable advantages:
Legal certainty: The notary verifies the legal capacity of the principal at the time of authentication. This is particularly important if the power of attorney is later challenged.
Acceptance in legal transactions: Notarially authenticated powers of attorney are generally accepted by banks, land registries and public authorities without further scrutiny. Privately drawn-up powers of attorney more frequently encounter difficulties.
Land register capability: For real estate transactions (sale, encumbrance with land charges), a notarially certified or authenticated power of attorney is required (§ 29 GBO).
Registration: The notary can register the power of attorney in the Central Register of Lasting Powers of Attorney maintained by the Federal Chamber of Notaries. In the event of guardianship proceedings, the court checks this register, ensuring the power of attorney can be found.
The Difference Between Certification and Authentication
In a certification, the notary merely confirms that the signature originates from the named person. In an authentication, the entire text is read aloud by the notary, explained and reviewed for legal validity. Authentication therefore provides a higher degree of legal and evidentiary certainty.
Who Should Execute a Power of Attorney?
In principle, any adult with legal capacity can execute a power of attorney. It is a widespread misconception that this is only relevant for elderly persons. Younger people can also find themselves in a situation where they are no longer able to act independently due to an accident or illness.
What Should Be Considered When Drafting?
- The power of attorney should be drafted as comprehensively as possible to avoid regulatory gaps.
- It should be stipulated whether the power of attorney continues to apply beyond death (transmortale Vollmacht).
- Where multiple attorneys are appointed, it should be specified whether they may act individually or only jointly.
- A supervisory power of attorney may be advisable to monitor the attorney.
Costs of Notarial Authentication
The costs are based on the transaction value, which is determined by the assets of the principal. Under the GNotKG, a 1.0 fee is generally charged. For a transaction value of 200,000 euros, the notarial costs amount to approximately 435 euros plus expenses and VAT. Registration in the Central Register of Lasting Powers of Attorney costs a one-off fee of under 20 euros.
Regular Review Recommended
A power of attorney and living will should be reviewed regularly to ensure they still reflect the current wishes of the principal. Changes in personal circumstances -- such as separation from the appointed attorney or new medical findings -- may necessitate amendments.
