On January 1, 2023, a comprehensive reform of the law of guardianship came into force. Part of this new regulation is the introduction of an emergency right of representation for spouses and life partners (registered civil partnership) in an emergency situation in the area of health care (Section 1358 BGB), if a spouse/life partner can no longer legally regulate their health care affairs due to unconsciousness or illness.
Previously, a spouse/life partner was only allowed to represent the other if he or she was authorized by the other spouse/life partner by means of a power of attorney that included health care provisions, or if he or she was appointed by the guardianship court as the legal guardian of the other spouse/life partner. Section 1358 BGB, which came into force on January 1, 2023, now gives spouses/life partners a mutual right of representation in the area of health care for emergencies. However, this is subject to strict conditions and only applies for a maximum period of six months.
The start of this period is determined by the doctor. During this time, the doctor is released from the duty of confidentiality towards the patient's spouse/life partner. If a married couple/life partnership does not want the other spouse/life partner to exercise such a right, they can explicitly object to this (in writing) or authorize another person. In the exceptional cases mentioned, for example if the spouses are living separately, the right of representation cannot be exercised without further explanation from the person concerned.
Along with the legal changes, doctors have been able to check the Central Register of Lasting Powers of Attorney since January 1, 2023, 24 hours a day, to see whether a patient who is no longer responsive has registered a lasting power of attorney, living will, health care proxyor an objection to the emergency right of representation of the spouse/life partner. At www.vorsorgeregister.de, any private individual can register a power of attorney, patient decree, care decree and/or a spouse's objection for a fee of approx. €20.00.
However, the new emergency power of attorney does not fully regulate the provision. Due to the unresolved legal questions on the one hand and the restriction to medical treatment and the time limit on the other, married couples/life partners should continue to have a health care proxy, a living will and/or a living will, which is sensible and inform their family doctor of this. This is necessary because the right of emergency representation only applies to health matters, so that dealings with authorities, insurance matters or banking transactions, etc. are not covered. On the other hand, the right of emergency representation exists for a maximum of only 6 months. If the affected spouse is still unable to make their own decisions after this period has expired and no power of attorney is available, a legal guardian must be appointed by the guardianship court.
The new right of mutual representation in health care matters is also explicitly limited to spouses/life partners (registered civil partners). Thus, for example, adult children or other trusted persons are not authorized to represent, but they can be authorized by means of a power of attorney.
A power of attorney can cover both health care and asset management. With it, the selected authorized representative has the option of taking all necessary actions for the person who has granted the power of attorney.
We will be happy to help you draw up power of attorney, living wills and health care proxies and answer any questions you may have regarding the emergency representation rights of spouses/life partners.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.