As of January 2023: The emergency spousal representation law (Ehegatten-Notvertretungsrecht)

Many spouses and partners believe that in the event of illness or health emergency, they are naturally the contact person for doctors and can take care of health issues for their partner. If such a situation arose, it often led to unpleasant surprises. Without a power of attorney, they were not automatically entitled to make decisions for their partner.

The new spousal emergency representation law addresses this misconception: Effective immediately, spouses or couples with a registered civil partnership can make decisions about medical issues for six months if their partner*s unexpected medical emergency situation arises.

What does the right of emergency representation include?

As of January 1, 2023, the new law on emergency representation for spouses will apply: spouses will be allowed to represent each other in emergency situations in matters of health care if they are no longer able to make decisions themselves. And this is possible without a power of attorney or living will. This right of emergency representation is valid for a maximum of six months.

An emergency situation is when the spouse can no longer manage his or her own affairs vis-à-vis doctors, the health insurance company, a hospital or a rehab facility. Such as after an accident, heart attack or stroke.

Which rights does the spouse have?

The partner* has the following rights during emergency representation:

• May consent to or prohibit examinations of the state of health, curative treatments or medical interventions. If there is a living will, one is of course bound by it.
• Receives the medical explanations which the ill spouse cannot receive himself/herself.
• May conclude all necessary contracts, such as treatment contracts.
• May decide on measures involving deprivation of liberty in the hospital or in the home, provided that the duration of the measure does not exceed six weeks in individual cases.
• May assert claims of the ill spouse against third parties arising from the illness (e.g. against the other party involved in an accident).
• May also assign these claims to service providers such as the health insurance fund.

Within the scope of the aforementioned powers of the representing spouse, physicians are released from their duty of confidentiality.

Note: The right of emergency representation applies only in direct connection with health care – not to residential matters or property care.

What are the requirements?

The law expressly refers only to emergencies: i.e. an acute situation resulting from an accident or sudden illness. The spouse concerned is unable to manage his or her own health care affairs due to unconsciousness, coma, illness or the like and is therefore not capable of making decisions.

What are the exclusion criteria:

Emergency spousal representation law does not apply mandatorily. There are various exclusion criteria:

• If the spouses live separately
• If it is known to the doctors that the person concerned does not wish the spouse to represent him or her
• If there is a health care proxy authorizing another person to represent the person concerned
• If there is already a legal guardian for the “health care” area of responsibility

Tip: Anyone who expressly rejects representation by a spouse should have his or her objection entered in the central register of precautionary measures.

When does the 6-months time line begin and what happens afterwards?

The emergency right of representation exists for a maximum of 6 months. The period applies as soon as the doctor(s) confirms in writing to the representing spouse that and from when the requirements are met. This confirmation then remains with the representing spouse and must be presented for all acts of representation in the context of health care.

However, a health crisis can of course last longer. However, the right of representation expires after six months – this is not renewable. After this period, the appointment of a guardian by the court can no longer be avoided.

The health care proxy remains important:

Emergency spousal representation law can be a great relief in acute situations. However, the options for action and the timeframe are limited. It therefore does not replace the tried-and-tested precautionary options such as health care proxy and living will.

If there is a power of attorney, the authorized representative can take all actions that may become necessary.