General
The law is clear. Nevertheless, in practice, many (health care) proxies find themselves in dispute with the guardianship court regarding the establishment or continuation of legal guardianship. Therefore, the following principle should be emphasized again and again: No legal care in the presence of a health care proxy!
Prerequisite for the establishment of care:
- A person of full age is no longer able to manage his or her own affairs in whole or in part due to a mental illness (and/or physical, mental or emotional disability) (Section 1896 (1) sentence 1 of the German Civil Code).
- A guardian may only be appointed for areas of responsibility in which care is necessary (Section 1896 (2) sentence 1 of the German Civil Code [BGB] | principle of necessity). This is not the case if the affairs can be regulated by, for example, a (health care) proxy.
The Federal Supreme Court (BGH) writes in the decision I ZB 60/18 of 23.10.2019 (reason 36): One of the main objectives of the law on guardianship is to preserve and promote the remaining self-determination of persons in need of care, to minimize interference with their freedom through guardianship measures and, as far as possible, to avoid guardianship in the first place. … The person concerned should organize the management of his affairs as far as possible himself or with the help of his social environment and without state interference. The necessity of guardian appointments should therefore be reduced to a minimum. In addition to strengthening the right of self-determination of the person concerned, this also serves to relieve the courts.
This means that the appointment of a guardian despite an existing health care proxy is therefore unlawful. A guardianship that is established despite the existence of an effective health care proxy shall be revoked.
Exceptions:
- Problems with acceptance of the health care proxy in legal transactions
- Doubts about the suitability or probity of the authorized representative
Notice:
The above statements do not constitute legal advice, but are of an informative nature only.
Precaution psychiatry
There are many templates for living wills; almost all are for end-of-life situations or dementia, comas, etc. They are usually not suitable for the special situation of people with mental illness.
The psychiatric living will has been created specifically to meet the needs of people with mental illness. It is formulated in a factual and neutral manner and is therefore suitable for any mental illness. Everyone can put together the building blocks of the order according to their own ideas and wishes.
The template with explanations can be downloaded below. It corresponds to the current state of legislation/court rulings.
- The Psychiatric Living Will
(to be filled in by hand/ PDF)
incl. Explanations - The Psychiatric Living Will
(to be filled in on the computer/ Word)
without explanations - Notes and explanations (PDF)
Source:
Wegweiser-Betreuung / Network Psychiatry Munich e. V.
In the event of a re-emerging crisis, a treatment agreement can be a useful precautionary option for people experiencing mental illness.
Treatment agreement
- is a contract between a patient and a clinic represented by a trusted physician.
- regulates a patient’s wishes around any further hospitalization that may be necessary.
- at the same time documents the capacity of the person concerned to give consent.
- Is legally equivalent to a living will and must be followed
A good example is the
Bielefeld treatment agreement
. It was the first of its kind nationwide.