General power of attorney, preventive power of attorney and living will
Why should you give a “strong general power of attorney”? A serious accident or stroke of fate cannot be foreseen. Everyone is at risk of becoming the victim of a sudden accident or illness. However, very few people actually want to deal with the subject.
But not only an accident, but also dementia in old age can make it impossible for you to deal with your concerns. In this case, everyone would like a trusted person to represent them in their concerns. If you have not given a general power of attorney beforehand, the court can appoint a stranger to look after you.
With a general or provisional power of attorney, you can ensure that in the event of your own incapacity, a trusted person appointed by you will make decisions on your behalf in place of a court advisor.
It is also possible to appoint more than one person; among them the order in which the power of attorney is exercised can be regulated. Incidentally, this applies not only to people of advanced age, but also, of course, to young adults aged 18 and over.
Our service as notaries
Your notary will work out the text of the power of attorney for pension provision or the care mandate together with you. If you wish, this can be registered in the Central Register for Benefit Dispositions in Berlin after notarisation. If desired, the notary will also assist in the preparation of living wills. In this way, you can ensure that no one carries out medical treatment against your will.
What is a power of attorney?
With a power of attorney you give one or more persons the right to represent you in certain situations. We issue a power of attorney again and again in everyday life. For example, if you ask someone to pick up a package from the post office on your behalf, you have given them a power of attorney.
In what form must a power of attorney be issued?
A power of attorney is not legally bound to a certain form. The principal therefore has the right to freedom of design when drafting a power of attorney. However, the content of the power of attorney is of great importance for it to be effective and for public bodies to recognise the power of attorney. The power of attorney does not have to be drafted by hand, as is the case with a will, for example. You may also create the power of attorney on a computer and sign it by hand. If you do not wish to grant an individual power of attorney, but a precautionary or general power of attorney, we recommend that you seek legal advice from a notary public. We will be happy to help you to adequately reflect the complexity of your personal needs.
What is a general power of attorney?
The general power of attorney is a special form of power of attorney. It applies in the event that you are no longer able to communicate your will yourself and independently regulate legal transactions. Such a power of attorney is therefore only given to the closest confidants, such as the spouse, children or close persons. A general power of attorney means great trust, because in an emergency, the party granting the power of attorney cannot determine whether it is really acting in his or her interest.
What is the scope of a general power of attorney?
In the case of an individual power of attorney, you give a person the authority to represent you for a specific legal matter. For example, a bank power of attorney is only valid for the corresponding credit institution. Unlike an individual power of attorney, a general power of attorney covers all transferable legal transactions. If you create a general power of attorney with the notary, then this power of representation simultaneously covers all areas in which a representation is possible. This means that the following powers of attorney are included in the general power of attorney:
- Power of attorney
- Living will
- Decree of care
The advantage of the general power of attorney is that you save both time and effort, as you do not have to draw up an individual power of attorney for each legal transaction. You also prevent an important legal transaction from being forgotten.
For entrepreneurs, a general power of attorney, which also contains the corporate power of attorney, is advantageous. This enables you to regulate who is to take over the business at the same time.
The general power of attorney is valid beyond the death of the principal and ends when the estate passes to the heirs. A general power of attorney can be revoked at any time as long as the principal is legally capable of acting.
With a general power of attorney, you give the authorised representative the right to represent you in personal and property matters. Strong representation excludes highly personal concerns.
Which legal transactions are covered by a general power of attorney?
The general power of attorney gives the authorised representatives the necessary authority to conduct legal transactions in your interest. These legal transactions include, for example
- Payments…
- Authorities
- Tax returns
- Insurance
- Asset management
- Litigation
- Rent
- Contractual obligations
- Negotiations with business partners
You can specify which rights you wish to transfer in the power of attorney itself. It is important to present your will in detail and exactly so that there are no ambiguities in case of emergency. Our notaries will be pleased to help you document all your wishes in a legally binding manner.
What is meant by the term personal matters?
In the area of personal affairs decisions are made primarily about medical care and treatment. If you become legally incapacitated, for example due to a stroke, an accident or dementia, you can no longer make decisions about your health yourself. The representative then has the right to make this decision on your behalf and, for example, to agree to an operation. When you are admitted to hospital, doctors usually find out whether you have a power of attorney – in case the patient can no longer decide for himself.
What is meant by property matters?
The property law matters include, for example, banking transactions and property transactions. Banks and credit institutions generally only accept notarised powers of attorney or a power of attorney on your own bank form. The same applies to property transactions. If a property is to be sold or encumbered with a land charge, a notarised power of attorney is absolutely necessary.
What are highly personal matters?
In the case of the general power of attorney, highly personal matters are excluded. These include marriage, divorce, the right to vote or to draw up a will.
What is a living will?
A Patient Decree specifies which medical measures are to be carried out or omitted if the patient is no longer able to decide for himself or herself at the time of treatment. In this way, you determine which treatments you want or refuse for yourself in an emergency or nursing situation. The Patient Decree ensures that the will of the patient is respected.
Many people use the Patient Decree to decide in advance whether or not to switch off life-sustaining measures in an emergency, thus making it easier for relatives to make a decision. Every person who has reached the age of 18 is allowed to write a Patient Decree. This can be revoked informally at any time.
What is the difference between a general power of attorney and a precautionary power of attorney?
In many cases general power of attorney and provisional power of attorney are used synonymously. In terms of content, the two powers of attorney do not have to differ from each other either, because by law the principle of freedom of design applies to powers of attorney.
A general power of attorney ensures above all that the authorised representative can represent the principal in legal transactions. The general power of attorney is often granted to the spouse. For example, it enables the partner to dispose not only of a single account, but also of all areas of assets. In addition, the authorised representative can negotiate with business partners or change insurance law concerns.
In principle, the power of attorney for pension plans mainly defines details on health aspects, but the authorized representative may also determine legal transactions that affect the assets.
What is covered by the power of attorney for pension purposes?
If you grant a general power of attorney, a precautionary power of attorney is included. The precautionary power of attorney extends primarily to health care and clarifies all health-related issues. The power of attorney enables a trusted third party to act quickly in an emergency. For doctors and relatives in particular, a power of attorney of precaution provides clarity about who is the contact person and decision-maker. The representative has the right to inspect the medical file and can decide on medical treatment and pain-relieving measures. The authorised representative also has the right to choose the place of residence of the principal. This can be, for example, the hospital for medical care, but also a retirement home or nursing home. Property matters are also covered by the power of attorney.
The authorised representative may only represent you if you yourself are not able to express your own will or are already legally incapable of acting. The power of attorney therefore only takes effect when the emergency has occurred and not before.
What are the risks involved in granting a general or precautionary power of attorney?
No matter which form of power of attorney you choose, it is always associated with a high risk of abuse. We therefore recommend that you seek advice from a notary. The notary can inform you about all legal consequences of granting a power of attorney. A general power of attorney is always a great sign of confidence for the authorised representative. The authorised representative should therefore always be a person of close trust.
Must a general power of attorney be notarized ?
Notarisation of a power of attorney is not always necessary. However, if you want to be sure that the power of attorney is recognised as effective by the law as well as by banking institutions and other public bodies, it must be notarised. This notarized document is called a “general and provident power of attorney”. Our notary’s office in Cologne will also provide you with comprehensive advice in advance as to which legal transactions should be reflected in the general and provident power of attorney. We also check the legal capacity of the party granting the power of attorney and note this in the power of attorney document. In this way, you avoid a later dispute if there is any doubt that the principal was no longer legally capable at the time of issue.