Advance care directive

With an advance care directive every person with capacity of judgement can set out instructions and powers of attorney to be acted upon in the event that they should lose their decision-making capacity. This makes it possible to issue detailed instructions stipulating which persons are to act for you in what fields of activity and according to which guidelines for action and decisions. The official heteronomy of a person lacking incapacity is therefore ruled out by issuing an advance care directive. An advance care directive may contain instructions relating to care of the person on the one hand and the care of the principal’s assets on the other. In both areas it is also possible to regulate the related issue of legal representation vis-à-vis private individuals and public authorities.

With an advance care directive every person with capacity of judgement can set out instructions and powers of attorney to be acted upon in the event that they should lose their decision-making capacity. This makes it possible to issue detailed instructions stipulating which persons are to act for you in what fields of activity and according to which guidelines for action and decisions. The official heteronomy of a person lacking incapacity is therefore ruled out by issuing an advance care directive. An advance care directive may contain instructions relating to care of the person on the one hand and the care of the principal’s assets on the other. In both areas it is also possible to regulate the related issue of legal representation vis-à-vis private individuals and public authorities.

Care of the person includes ensuring the principal’s personal well-being and therefore care and decision-making in all personal matters such as attending to the principal’s psychological and physical welfare, cultivating social contacts, participation in social occasions, but also decisions regarding accommodation in a home. These acts of assistance are provided by the person designated in the advance care directive, often with the aid of helpers such as physicians and other medical personnel, home nursing services and relatives.

Care of the principal’s assets concerns the preservation and management of the assets of the person lacking capacity of judgement. This also includes dealing with the principal’s personal mail, settling bills and carrying out banking transactions. If securities have to be managed, the person designated is authorised consult specialists such as asset managers in order to deal with this task. The person designated must keep a careful record of the transactions and management measures taken in caring for the principal’s asset.

When issuing an advance care directive it is necessary to observe certain formal requirements in order to prevent reckless and ill-considered actions. An advance care directive can therefore either be hand-written like a last will and testament, i.e. from beginning to end, or subsequently formulated by a notary and publicly authenticated. These formal requirements make sense because they usually ensure that important personal decisions are definitely delegated by issuing an advance care directive. Formulation by a notary and public authentication ensure that no questions arise regarding the contents of the advance care directive and the principal’s capacity of judgement at the time when the advance care directive was issued. So public authentication is preferable to the hand-written version.