The lasting power of attorney is an institution of self-determination under private law whereby the person giving the mandate instructs one or more natural or legal persons (e.g. a bank or organisation) to take care of the person and/or of the assets and/or to represent him or her in legal transactions in the event of his or her incapacity to judge (Art. 360 ff. ZGB). Provided that a valid power of attorney exists, the statutory provisions of adult protection law are superseded.
The condition is that the person granting the power of attorney can act at the time. To this end, he or she must be of age and capable of judgement (Art. 13 f. ZGB). However, the power of attorney is only issued for the event that the mandator is incapable of judgement. The adult protection authority is responsible for checking whether the mandator is incapable of judgement (Art. 363 para. 2 ZGB).
The guardian may be a natural person or a legal entity. It must at least be determinable. Several persons can also be chosen as commissioners. Since they can then usually only act jointly, this is only recommended in exceptional cases. In most cases it makes more sense to select a main commissioner and a substitute commissioner in case the main commissioner is legally or personally prevented from acting.
The content of the power of attorney can be cumulatively or alternatively the care of the person, the care of property and the representation in legal transactions, whereby, however, the representation in legal transactions is usually necessary to ensure the care of the person or property. The principal must precisely define the tasks of the representative and may even issue instructions for the fulfilment of the individual tasks.
Personal care includes the care of the mandator and thus the use of the mandated person to alleviate the mandator’s state of weakness or to avert a deterioration. The mandator may also instruct the person to give or withhold consent to a medical measure on his or her behalf. If the mandator wants to be sure that his or her medical instructions will be followed, it is recommended that he or she have the fact that a power of attorney exists and its place of deposit recorded on the insurance card.
The care of property includes the maintenance and management of the assets and income of the mandator. Here, too, the mandator may restrict certain measures.
For representation in legal transactions, it is useful to specify which legal acts the commissioner may perform. Otherwise, it must be checked in each individual case whether the specific legal act is also permitted. In case of doubt, the commissioner may appeal to the adult protection authority for an interpretation of the power of attorney (Art. 364 ZGB).
The power of attorney must either be drawn up personally (handwritten) or be publicly notarised (Art. 361 para. 1 ZGB). It is kept in a place of deposit by the mandator and it can be entered in a central database on application to the civil records office (Art. 361 para. 3 ZGB) that such a power of attorney exists. The specific content is not stored for data protection reasons.
The mandator may revoke his or her power of attorney at any time. Power of attorney written by the principal himself/herself may be revoked by personal disposition or by public notarisation. Publicly notarised power of attorney must necessarily be revoked by publicly notarised revocation. The mandator can also revoke the power of attorney by destroying the document or by drawing up a new power of attorney.
The differences to the Lasting Power of Attorney in Germany
If a guardianship is ordered in Germany, this does not automatically result in a restriction or even a loss of the legal capacity. Only if the guardianship court also orders a reservation of consent is the person’s capacity to contract restricted. The guardianship court can individually structure the reservation of consent and restrict it to certain legal transactions.
Note: A person under guardianship is not necessarily incapable of making a will. In many cases, however, a person under guardianship is both legally incompetent under section 104 no. 2 of the Civil Code and incapable of making a will under section 2229 subsection 4 of the Civil Code. A person who is unable to understand the meaning of a declaration made by him or her and to act in accordance with this understanding because of a pathological disturbance of his or her mental capacity, because of mental weakness or a disturbance of consciousness is incapable of making a will within the meaning of § 2229, paragraph 4, of the BGB. At this point, a will can no longer be made, revoked or amended. Each individual case must be examined in this regard.
Whereas in Germany guardianship is ordered based on the regulations on legal capacity, Switzerland takes a different approach. In Switzerland, the focus is on the general ability to take legal action. Here, the focus is thus on the capacity of judgement of the person concerned in general. Since the hurdle in Switzerland is not as high as in Germany, the formal requirements for the power of attorney in Switzerland are all the higher. In Germany, the Lasting Power of Attorney must be in writing, but not necessarily handwritten. Accordingly, a form can also be used that has been prepared in advance. If the power of attorney is also to include the mortgaging or transfer of real estate, it must be notarised or publicly certified by the guardianship authority.
In Switzerland, the spouse who shares a household with a person incapable of judgement or who regularly personally assists him or her has a legal right of representation according to Art. 374 para. 1 ZGB. This is not automatically the case in Germany. Outside the right of emergency representation under § 1358 BGB, one spouse may only represent the other if he or she has Lasting Power of Attorney for the other spouse or if he or she has been appointed legal guardian of the other spouse by the guardianship court. The right of emergency representation is limited to a maximum of six months and applies if one spouse is no longer able to take care of his or her health care matters due to unconsciousness or illness. In particular, the spouse can consent to medical interventions and medical treatment contracts. The spouse’s right of emergency representation is subordinate to an existing care or Lasting Power of Attorney.
In Germany, the guardianship courts are overburdened in many places, so that the courts are not able to sufficiently address the individual wishes and needs of those affected. Therefore, it is very important to have a Lasting Power of Attorney specifically tailored to your wishes.
You must be fully aware of the far-reaching consequences of the power of attorney and Lasting Power of Attorney. After all, important decisions about your health and your assets are at stake. It is therefore important that you have complete trust in this person.
We will be happy to advise you on this cross-border issue and will work with you to draw up your Lasting Power of Attorney and Health Care Proxy, which is specifically tailored to your wishes and needs. Especially if you have assets in both countries, an adequately designed power of attorney can help you overcome many potential problems.