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Notary Services: Guardianship & Care2018-09-02T14:28:03+00:00

Notary Services: Guardianship & Care

Any retirement and old-age care provision regimen should include general and specific powers of attorney that allow trusted individuals to act on one’s behalf while at the same time optimally securing one’s own rights to self-determination. Notary Delia Reinders can help you find ideal solutions for each segment of your life by helping you create legally binding notarized documents that allow those you trust to act on your behalf when necessary.

GUARDIANSHIP

German law requires that anyone who is either partially or entirely able to handle his or her own affairs shall receive a state-appointed guardian. You can prevent this from happening and stop a court from intervening by legally authorizing a trusted person to act in your stead and on your behalf in all issues related to your assets and personal life.

You alone can determine the content and extent of the guardianship proxy. For example, you may wish to only extend legal guardianship over your financial matters to one person or require that two people agree as to your financial best interests. The following matters can be governed by such proxy arrangements:

  • Concluding contracts
  • Wealth management
  • Banking matters
  • Acquiring information from doctors in the event of illness
  • Determining whether certain medical examinations can be performed and, if so, which ones
  • Determining whether or not life-extending measures should be terminated
  • Determining whether your organs should be donated

A guardian, however, can only effectively act on your behalf if you have first provided him or her with a legally effective proxy made out in the guardian’s name. You alone determine when that proxy will take effect.

To ensure that the proxy will be fully effective, it should be concluded in notarized form. Otherwise, it will not be effective, for example, when dealing with the land register or for purposes of taking up a loan. Additionally, notarized proxies cannot be forged and is accepted by banks, as the identity and legal capacity of the proxy issuer has been determined by the notary. Additionally, notaries provide legal advice and drafting as included in their services.

CARE DIRECTIVES

Without an effective power of attorney, German law requires that a court select and appoint a caretaker when people can no longer take care of themselves. If you do not want to rely on a court but instead would rather trust someone you know, you may appoint your own caretaker by means of a care directive. If there are no good reasons to deny the person you selected, the court will follow your determination. Additionally, this directive allows you to articulate instructions as to how you should be cared for. Your caretaker will be bound to these instructions to the extent that they do not violate your best interests.

In any event, and in contrast to a guardianship proxy, the caretaker will be monitored by the court and will require the court’s approval to make certain decisions.

LIVING WILLS

Your right to self-determination also extends to situations where you may be incapacitated, such as resulting from an accident. For such instances, there are so-called “living wills”. They allow you to determine beforehand which medical treatment you wish to receive in certain situations. In that manner, you can maintain your self-determination and decide which life-saving and life-prolonging measures, if any, you want to have performed. Doctors will generally be bound to the choices you made.

The following applies to living wills:

  • They become effective when you are no longer able to articulate your will.
  • As a general rule, your instructions are binding on all doctors, guardians and caretakers.
  • In contrast to a guardianship proxy or care directives, your instructions are only made to the doctors who treat you.
  • In the case of any differences of opinion among your doctors and your caretakers or guardians, the court will decide in favor of the will of the patient.

A COMBINATION THAT MAKES SENSE

If you are thinking about your future and want to make sure that your will comes first, there is no “either/or” decision between a guardianship proxy and a living will because the two are fundamentally different and because one does not replace the other.

In a guardianship proxy, you determine who will take care of your asset and wealth related matters and make decisions in that regard should the need arise. In a living will, you determine your exact treatment wishes for those instances when you are unable to freely articulate your own will. It is therefore crucially important to combine a guardianship proxy with a living will. That way, you can be certain that your appointed guardian will be bound to follow your wishes while at the same time having the necessary authority to perform them.

FEES

For their services, notaries charge fees subject to a legally defined fee system (GNotKG) exclusively determined by the commercial value of the subject legal matter. Notarization of your power of attorney, care directive or living will therefore cost the same amount regardless of the notary. The notary fees also include all consultations and drafting. The notary will gladly provide information regarding the anticipated costs of the proposed agreement.

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