Lasting power of attorney and living will:
providing for yourself with self-determination.
Accident, illness, old age: anyone who can no longer decide for themselves needs someone to do so on their behalf in a legally binding way. Without a power of attorney, the court appoints a guardian – even against the wishes of the family. This guide explains how a lasting power of attorney, a guardianship directive and a living will work together, and why the notarial form makes the difference.
The misconception of automatic spousal rights
The most common misconception in provision planning: "My spouse will surely be able to sort that out." In fact, since 2023 there is only a narrowly limited emergency representation right of the spouse in health matters (§ 1358 BGB) – limited to six months and without any authority over accounts, contracts or property. Adult children have no statutory power of representation whatsoever. If there is no power of attorney, the guardianship court appoints a guardian – the procedure costs time, money and self-determination, and the guardian remains under ongoing court supervision.
The central instrument – and why notarial
With the Power of Attorney for Precautionary Purposes you decide for yourself who acts on your behalf – typically as a General Power of Attorney for financial, health and administrative matters, often with substitute attorneys. The notarial form is more than a mere formality:
- Land register capability: Only with at least a publicly certified – in practice: notarial – power of attorney can the attorney sell or encumber property (§ 29 GBO). For consumer loans, notarial certification is even a condition of validity.
- Acceptance: Banks and authorities regularly recognise the notarial power of attorney without discussion – private forms are often met with reluctance.
- Evidential value: The notary examines and documents legal capacity – this protects the power of attorney against later challenge.
- Advice: Internal arrangements, a supervisory attorney, conditions and protection against misuse are individually tailored rather than taken from a template.
Plan B: If a guardian is appointed after all
In case a guardianship becomes necessary despite everything – for example because the power of attorney does not cover a certain area –, the Care Directive determines who should become guardian (and who should under no circumstances). The court is generally bound by this. It is sensibly combined with the lasting power of attorney.
Regulating medical decisions in a binding manner
The Living Will (§ 1827 BGB) sets out which medical measures you wish or refuse in specific situations – for example in the case of an irreversible dying process, the final stage of a terminal illness, or permanent loss of consciousness. The Federal Court of Justice requires specific stipulations: general statements such as "no life-prolonging measures" are not sufficient. Doctors and attorneys are bound by a valid living will; combining it with the lasting power of attorney ensures that someone also enforces your stipulations.
Register, safekeeping, updating
The power of attorney should be registered in the Central Register of Provisions of the Federal Chamber of Notaries – guardianship courts check there before appointing a guardian; we take care of the registration directly. The Costs for the notarial lasting power of attorney are based on the GNotKG and on the assets involved – a one-off fee that is regularly far below the ongoing costs of guardianship proceedings. Review your provision documents roughly every five years and after major life events (marriage, divorce, death) – and consider asset succession at the same time: how a robust will is created is shown in our Will Guide.
Briefly answered
Is a private or template power of attorney not sufficient?
A private power of attorney is generally valid – but it is not sufficient for property transactions (§ 29 GBO requires public certification), notarial certification is required for consumer loans, and banks often accept template powers of attorney only hesitantly. The notarial power of attorney removes these obstacles and documents legal capacity.
May my spouse not automatically decide for me?
Only to a very limited extent: the statutory emergency representation right (§ 1358 BGB) applies solely to health matters and ends after six months. For accounts, contracts, authorities and property, the spouse has no power of representation whatsoever without a power of attorney – court-ordered guardianship then threatens.
What is the difference between a lasting power of attorney and a guardianship directive?
The lasting power of attorney avoids guardianship: your attorney acts directly, without the court. The guardianship directive only takes effect if a guardian nevertheless has to be appointed – it determines whom the court should choose. Both are sensibly combined.
Can I amend or revoke the power of attorney later?
At any time, as long as you have legal capacity. Revocation is effected by declaration to the attorney; the certified copy should be reclaimed and the registration in the register of provisions updated. A supervisory attorney can also be built in as a safeguard.
What does the notarial lasting power of attorney cost?
The fee is based on the GNotKG and is calculated according to the assets involved – it is incurred once. By comparison: guardianship proceedings incur recurring annual costs and reporting obligations. We will inform you of the exact fee in advance upon request.
Provision complete – in a single appointment.
Lasting power of attorney, guardianship directive and living will, coordinated with one another and registered in the register of provisions. We prepare everything.