Spouses have the right of emergency representation in health matters

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

Emergency representation in health matters

Accordingly, spouses and registered partners are not only authorized to consent to examinations of each other's state of health, medical treatment or medical interventions if they are no longer able to manage their own affairs due to unconsciousness or illness. They can also conclude contracts in connection with healthcare, such as hospital contracts or contracts for urgent medical treatment, care and rehabilitation. The right of emergency representation also includes the authority to represent the spouse vis-à-vis doctors and to assert claims against another person, such as the other party involved in an accident or an insurance company. As part of the right of emergency representation, the treating doctors are released from their duty of medical confidentiality towards the representing spouse. The latter may also inspect the medical records.

Conditions and duration of the right of emergency representation

The right of emergency representation only applies in the area of health care, i.e. not in matters of property care. The represented spouse is therefore not entitled to deal with public authorities and banking transactions on behalf of the partner who is unable to make decisions or to open their mail, unless these activities are directly related to health care. The same applies to the termination of contracts and the sale of assets, such as the represented spouse's car. The right of emergency representation is limited to a period of six months. In addition, the spouses must not live separately from each other and health care must not already be arranged elsewhere. If the unconsciousness or inability to make decisions lasts longer than six months, it is mandatory that a court supervision be set up. If you want to exclude certain medical measures and treatments from the outset or ensure that your own will is enforced, you should set up a power of attorney with a living will with corresponding instructions at an early stage.

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Only fully covered with power of attorney

The new emergency power of attorney is not a substitute for a power of attorney or a health care proxy. Living will. It cannot prevent a court-ordered guardianship, at least beyond a period of six months or in matters other than health care. If the appointment of a guardian appointed by the guardianship court is to be prevented, a health care and general power of attorney is absolutely necessary in order to clarify all health and property matters in one's own interest and without a guardian, even after 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 on request

The right of emergency representation applies automatically under the aforementioned conditions, i.e. in case of doubt, even against the will of the unconscious or incapacitated spouse. The requirements for this must be checked by the attending physician, who must also determine and document the start of the right of emergency representation. For each subsequent representation, the representing spouse must present the corresponding documentary evidence. If married couples do not wish to have mutual emergency representation, an objection to this can be submitted in writing in advance and this document can be deposited with the Central Register of Lasting Powers of Attorney of the 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/.