The Civil Code defines a person as capable of judgement if he or she is not incapable of acting rationally because of childhood, mental disability, mental disorder, intoxication or similar conditions. A person’s ability to judge can be permanently or temporarily impaired by an accident or illness. If a person is incapable of judgement, he needs a person who will look after his interests. This entitled person can result from a advance care directive or a living will of the person who has become incapable of judgement.

In the absence of an advance care directive or a living will, the law primarily mentions assistance with a right of representation in medical measures. The law further names in the following order the spouse or registered partner who runs a joint household with the incapacitated person; the descendants; the parents and finally the siblings. It is a prerequisite that the persons mentioned above regularly and personally support the person who has become incapable of judgement.

Advance Care Directive

A person of trust can be designated before one is incapable to judge. For this purpose, there is the so-called “advance care directive”. A person is appointed to represent the person incapable of judgement in legal transactions and with regard to asset management. It must be precisely formulated which tasks are assigned to which person. An appropriate compensation should also be determined. In the absence of precise instructions, the person authorized to represent the incapacitated person decides according to the presumed will and interests of the incapacitated person.

Living Will 

After an accident or illness, you may not have the time to decide on medical measures. A living will ensures that the personal will of the person concerned regarding medical measures is taken into account even in the case of inability to judge. A living will can, for example, refer to a trusted third party, explanations of therapeutic  goals or certain medical supplemented by a living will, which takes precedence over the procedure of medical measures. In the absence of instructions in the case of living wills, the entitled person decides according to the presumed will and interests of the person who is incapable of judgement.

Filing

The advance care directive can be filed by the person himself/herself, but it must be able to be found in the event of incapacity. The place of deposit can also  be entered in the register of persons with the help of the civil registry office.

The place of filing of a living will can be entered on the health insurance card, where doctors and other medical  providers can help. Nevertheless, it is advisable to inform a trusted person of the place of filing.

Formal Requirements

Like a will, the advance care directive must be written, dated and signed by hand or publicly notarized by a notary. This prevents elderly persons from signing prefabricated papers from third parties without understanding their content. A living will must be written (it can also be typed). It must be dated and signed in person. If the form is not adhered to, the presumed will of the incapacitated person is taken into account.