Spouses have the right to represent each other in health matters

Westphalian Chamber of Notaries. An accident or heart attack can strike anyone unexpectedly. Those affected may then no longer be capable of acting or making decisions. If they have not established a corresponding power of attorney, spouses and registered partners have a right of emergency representation in such cases in accordance with Section 1358 of the German Civil Code (BGB).

Emergency representation in health matters

Spouses and registered partners are not only authorized to consent to medical examinations, treatments, or procedures for their partner if the latter is unable to manage their own affairs due to unconsciousness or illness. They can also conclude contracts relating to health care, such as hospital contracts or contracts for urgent medical treatment, care, and rehabilitation. Furthermore, the right of emergency representation includes the authority to represent the spouse vis-à-vis doctors and to assert claims against another person, such as an accident opponent or an insurance company. Within the scope of the right of emergency representation, the attending physicians are released from their medical confidentiality obligation towards the representing spouse. The latter is also entitled to inspect the medical records.

Prerequisite and duration of the right of emergency representation

The right of emergency representation applies only to healthcare matters, not to financial matters. The representing spouse is therefore not authorized to carry out administrative procedures or banking transactions on behalf of the incapacitated partner or to open their mail, unless these activities are directly related to healthcare. The same applies to the termination of contracts and the sale of assets, such as the car of the represented spouse. The right of emergency representation is limited to a period of six months. Furthermore, the spouses must not be living separately and healthcare must not already have been arranged elsewhere. If the unconsciousness or incapacity to make decisions lasts longer than six months, it is mandatory to legal guardianship be established. Anyone who wishes to exclude certain medical measures and treatments from the outset or ensure that their own wishes are carried out should draw up a health care proxy with a living will containing the relevant instructions at an early stage.

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Fully protected only with power of attorney

The new emergency representation right is not a substitute for a health care proxy or for a Living will. It cannot prevent court-ordered guardianship, at least for a period of more than six months or in matters other than health care. If you want to prevent the appointment of a guardian by the guardianship court, you must have a power of attorney and general power of attorney in order to settle all health and property matters in accordance with your own wishes and without a guardian, even after your death. Furthermore, a living will should be drawn up that describes in detail which forms of treatment, such as artificial respiration, are desired for which illnesses and which therapies the potential patient rejects. The family doctor should also be informed of this.

Emergency representation can be prevented upon request

The right of emergency representation applies automatically under the conditions mentioned above, i.e., in case of doubt, even against the will of the unconscious or incapacitated spouse. The attending physician must check the conditions for this and also determine and document the start of the right of emergency representation. For each subsequent representation, the representing spouse must present the relevant supporting document. If married couples do not want mutual emergency representation, they can submit a written objection in advance and deposit this document with the Central Register of Lasting Powers of Attorney of the German Federal Chamber of Notaries (ZVR) for a small fee.

If you would like advice on this topic from a notary in advance, you can find it on the Internet at https://notar.de/ the right contact person. You can also visit the online consumer portal of the Chamber of Notaries at https://ratgeber-notar.de/.