Advanced Care Directive and Patient Decree

The advanced acare directive and the patient decree are means of determining who should make the necessary decisions for oneself after the loss of capacity to act. By law, the spouse/registered partner of a person who has lost capacity of judgement has the right of representation as well.

Upon reaching the age of majority, we are used to determining our own lives in all areas. If we lose the capacity for self-determination due to the onset of incapacity, e.g. due to dementia or an accident, we are dependent on the support of third parties.

1. Purpose of the advanced care directive

With the introduction of the advanced care directive in 2013, the legislator created the possibility for every adult with capacity to judge to determine who should make the necessary decisions for them in the event of incapacity of judgement. Many are convinced that in the event of a loss of capacity, a loved one can make the decisions of normal everyday life and that an official intervention by the child and adult protection authority (KESB) is only needed in special cases and thus a professional guardian is appointed. According to the law (ZGB), this only applies to married persons or persons living in a registered partnership. Art. 374 ZGB grants the spouse/registered partner certain, but limited rights of representation. In the case of unmarried couples not living in a registered partnership, the KESB has the duty to ensure the care and representation of a person with permanent incapacity of judgement. For this purpose, a guardian is appointed by the court. If no suitable person can be found in the environment of the incapacitated person, a professional guardian is appointed. The KESB does not take action if a person is only temporarily incapacitated, e.g. due to illness/accident. The only legally binding way to prevent the authorities from interfering with the family structure is to set up an advanced care directive, which can be notarized.

2. Contents of an advanced care directive

The advanced care directive covers three areas of regulation:

• Personal care: health measures, in particular care and medical treatment.
• Property care: ensuring orderly daily life with income and asset management (e.g. paying bills, filing tax returns, opening mail, etc.).
• Representation in legal transactions: taking the necessary legal actions in connection with the care of persons and property (e.g. concluding contracts, terminating contracts, etc.).

Usually it is possible to indicate at the civil registry office of one's municipality of residence that an advanced care directive exists and where it is deposited. In order to activate it, however, it is first necessary for the proxy to be appointed by the KESB (validation of the proxy).

3. Purpose and content of a patient decree

The patient decree is an instrument of personal precaution in the event of incapacity, which is independent of the advanced care directive but complements it. If a living will exists, it takes precedence over the advance directive with regard to medical matters. The patient decree can be used to specify which medical measures should be taken or omitted in the event of incapacity of judgement (e.g. treatment goal and medical measures, treatment of pain and other symptoms, organ donation etc.). In addition, a person can be appointed who is responsible for enforcing the patient decree or deciding on measures that are not specifically regulated by it.

4. Formal requirements

The same formal requirements apply to the advanced care directive as to a testamentary disposition, i.e. the advanced care directive must either be publicly certified by a notary or written down, dated and signed by hand from beginning to end. Prerequisites for the establishment of an advanced care directive are:

• the age of majority and
• capacity to judge.

The patient decree, on the other hand, can simply be written. The form can be filled in on the computer, printed out and then dated and signed by hand. The only prerequisite for drawing up a patient decree - in contrast to an advanced care directive - is the capacity to judge. This means that even a minor who is capable of making a decision can draw up a patient decree. A note regarding an existing patient decree can be put on the health insurance card. Each person can only regulate their own precautionary affairs.

5. Further advice

If you have any questions about your individual case or need advice, we are happy to help.