There is no such thing as incapacitation – self-determination through provision

In the course of life, situations can arise in which people are no longer able to manage their own affairs – whether due to illness, an accident or age-related limitations. For many people, this raises the anxious question: Who will make decisions for me? And how can I ensure that my wishes and ideas are respected? The term ‘incapacitation’ still haunts the minds of many people. Yet incapacitation has been a thing of the past in Germany for over 30 years.

Today’s guardianship law has completely replaced the former guardianship for adults. Instead of paternalism, the focus today is on supporting the person concerned. Nevertheless, the fear of a supposed loss of control remains great. The key to remaining self-determined lies in making good provisions – through powers of attorney and advance directives.

What does ‘disenfranchisement’ mean and why does it no longer exist?

In the past, incapacitation was a legal instrument that enabled the state to completely or partially remove a person’s legal capacity. The person concerned was declared a ‘ward’ and assigned a guardian who made all legal and financial decisions for them. These measures often led to a complete loss of self-determination and were – from today’s perspective – often arbitrary or disproportionate.

In 1992, the legislator abolished incapacitation and introduced modern guardianship law. Today, incapacitation no longer exists. Instead, there is legal guardianship, which supports the person concerned instead of patronising them. In principle, legal capacity is retained and those affected can continue to make as many decisions as possible themselves.

Legal care: support, not paternalism

Legal guardianship is set up by the guardianship court if a person is incapacitated due to:

• mental illness (e.g. dementia, depression),
• mental or emotional disabilities
• or physical limitations

can no longer manage their affairs independently. A precise assessment is made as to whether and in which areas of life support is required. Support is only ordered to the extent that it is necessary. For example, it can only be set up for the areas of ‘property care’ or ‘health care’.

Important: The person concerned generally retains legal capacity despite guardianship. Only in rare cases can a so-called reservation of consent be introduced. This means that certain decisions – such as major financial transactions – only become effective with the consent of the carer.

Relatives, friends or even professional carers can be appointed as carers – your co-determination counts! Because if you make provisions in good time, you can decide for yourself who should take on this role in an emergency. This is what the care directive is for. In this document you can:

• Name people who should be appointed as carers,
• exclude people you do not wish to see in this role.

The guardianship court will take your wishes into account and will include the directive in its decision.

Self-determination through precaution: health care proxy and advance directives

If you would like to ensure that legal guardianship does not become necessary in the first place, you should make provisions in good time. The most important instruments for this are

1. Healthcare proxy
2. Advance care directive
3. Living will

These documents allow you to specify your wishes and decisions in the event of illness or need for care. You can decide for yourself who is authorised to act on your behalf and in which areas support is required.

1. The health care proxy: trust and responsibility

With a health care proxy, you authorise a person you trust to make decisions on your behalf if you are no longer able to do so yourself. The power of attorney is the most powerful means of avoiding legal guardianship.

In which areas does the power of attorney apply?
You can specify the matters in which your authorised representative may act, e.g:

• Finances: Access to bank accounts, management of assets.
• Health: Decisions on medical treatment.
• Official matters: Communication with authorities and insurance companies.

Advantages of the health care proxy:

• You avoid a time-consuming guardianship procedure.
• You retain control over who manages your affairs.
• Your trusted person has direct decision-making authority.

Tip: A health care proxy should be carefully formulated and, if necessary, notarised by a lawyer or notary, especially if it includes property transactions or large financial transactions.

2. The care directive: Who should be the carer?

In contrast to the power of attorney for healthcare, the care directive specifies who should be appointed as a carer in the event of care. It is useful if you do not want to or cannot grant a comprehensive power of attorney.

Important contents of a care directive:

• Nomination of a preferred person as carer.
• Exclusion of persons you do not wish to be your carer.
• Wishes regarding the type of care (e.g. living situation, medical treatment).

The guardianship court will review your instructions and appoint the desired carer if they are suitable. Your wishes are an important point of reference for the court.

3. The living will: Making provisions for a medical emergency

A living will regulates medical measures in the event that you are no longer able to make decisions yourself. This is where you record which treatments you want or do not want, e.g:

• Resuscitation in the event of serious illness,
• artificial nutrition,
• life-sustaining measures in the case of terminal illness.

Important points in the living will:

• Be as specific as possible to avoid confusion later on.
• Discuss the advance directive with your doctor.
• Keep a written record of your advance directive and keep it in an easily accessible place.

A living will relieves the burden on relatives and doctors, as your wishes are clearly set out.

Guardianship or health care proxy – what’s the difference?

A health care proxy is a voluntary, timely decision by a person with legal capacity. You authorise a trusted person without the need for a court to intervene.

Legal guardianship comes into effect if no precautions have been taken and a person can no longer manage their own affairs. The guardianship court decides on the establishment of guardianship.

Conclusion: Self-determination through timely provision

The days of incapacitation are long gone. Modern guardianship law protects the dignity and rights of the people concerned. Nevertheless, it remains important to make your own provisions in good time. With a health care proxy, care directive and living will, you can ensure that your wishes are respected and your affairs are organised in your best interests.

We at Viva Family Service would like to encourage you to create clarity at an early stage – for yourself and your loved ones. After all, those who make provisions retain control and can look to the future with peace of mind.