Here's what's behind the new spousal emergency representation law!

This is behind the new spousal power of representation!

It is decided: The legal reform § 1358 BGB will in the future allow an emergency power of attorney for spouses in medical emergency situations. This means that spouses will be able to represent each other if the partner can no longer take care of their health - for example, due to unconsciousness or other medical conditions.

Here you will learn what the reform entails, why it makes sense for every married person of any age, and why it does not replace a personally declared power of attorney in any way!

When does the law take effect?

On March 5, 2021, the Bundestag adopted the draft law on the reform of guardianship and custodial law, formulated by the federal government. This reform will come into force in January 2023.

What takes long will finally get better: The new reform comes into effect in January 2023 and makes spousal emergency representation possible.

From then on, it becomes acute for users. From then on, spouses and partners in registered partnerships are allowed to represent each other in health care matters, as soon as one of them is no longer able to make decisions due to health reasons.

What was it like before?

According to current law, spouses cannot make any decisions regarding medical procedures for their partner if he or she is no longer able to do so due to health reasons. They are only authorized to act on their behalf if they have been explicitly appointed as a legal guardian or have been granted a power of attorney in advance.

Statistically speaking, most people assume that their spouse or closest relatives should be responsible in an emergency.

This is a real problem. Most people, especially younger individuals and even the target group up to 59 years old, intuitively assume that in a medical emergency situation, their spouse would be allowed to decide for them. This is shown by a Forsa study, where in the age group 18–29 years, only two out of 100 respondents stated they had issued a power of attorney. In the age group 45–59 years, it was only 23 out of 100 respondents. However, should there actually be an acute health situation, there is no possibility to assume decision-making power without a power of attorney. Additionally, a living will is also helpful.

The law provides for automatically transferred decision-making power to a spouse in medical emergency situations, thus aligning more closely with people's wishes in such an acute situation.

The new law, which conditionally enables automatic representation in the future, thus meets the people's desire that in the event of incapacitation, the partner or children are entitled to representation. While the reform will not come into force until January 2023, it is still worthwhile to inform yourself about it now. Especially because this reform only applies in emergencies and still does not cover all areas comprehensively. To anticipate: It remains important to create a power of attorney and a living will as part of personal care.

What does the reform bring and why is a power of attorney still important?

By the amendment to § 1358 BGB, a right of emergency representation will be granted in matters of health care, which relates to spouses. This right includes decisions about examinations and treatments and the related financial decisions – for example, treatment contracts or claims against third parties.

Anyone who truly wants to ensure their safety and be taken care of according to their individual wishes continues to rely on the personally created and documented living will.

The new regulations, however, are expressly intended only for emergencies. The addition that the power of attorney is limited to six months makes this clear. Furthermore, the attending physician must confirm in writing that the medical prerequisites for representation are indeed present. In addition, areas such as housing matters, other official topics, and asset management are not included.

These are all valid reasons not to rely solely on the power of representation, but to still arrange a written power of attorney for precautionary measures.

What if one doesn't want spouses to automatically have decision-making authority in an emergency?

Highly important: The new regulation also counteracts abuse by excluding spousal representation when the ill person has previously expressed a contrary will or authorized another person in a power of attorney. The statutory proxy right also does not apply to spouses living apart.

If one does not want the spouse to automatically take over decision-making power, a living will with individual designation of reference and care persons is all the more worthwhile.

Moreover, if the emergency representation is valid, the court must appoint a legal guardian after three months. Note: Even if the court considers the degrees of kinship, these do not necessarily have to be the spouse or children. If it turns out that there could be a conflict, for example in the case of a possible inheritance, closer relatives will be excluded from the power of representation.

Conclusion: An excellent legal reform that nevertheless continues to make powers of attorney and advance directives important for personal planning.

The conclusion is therefore: The new law is definitely a good and important step towards the needs of people in medical emergencies. Nevertheless, there are important areas that this law does not cover. At the same time, it is time-limited and does not address the individual wishes of the sick person.

It remains quite clear that the recommendation is to take care of a written power of attorney including a living will as early as possible. This way, individual arrangements can be made, preferred trusted individuals can be named, and details of measures can be defined. And this without a time limit and related to all areas of life and health.

by Jana Lorenz

famPLUS - Together for your personal PLUS!