Advance healthcare directive

Speaker: Dirk Plewka, Insurance and Pension Broker
Summary: Prof. Dr. med. Gratiana Steinkamp, as published in Alpha1 Journal 1-2019

The topic of advance healthcare directives and powers of attorney is about being able to make your own decisions about your life – right up to the end. This requires expressing your wishes and preferences in writing.

Advance healthcare directive

An advance healthcare directive specifies what should happen if you are no longer able to make decisions for yourself. Such a situation can arise not only after a long illness, but also due to an accident resulting in unconsciousness—in other words, at any stage of life. A prerequisite for an advance healthcare directive is legal capacity, which in Germany is acquired upon reaching the age of majority on one's 18th birthday. The legal basis is laid down in the German Civil Code (BGB) in sections 630a to 630h. Regarding consent to medical treatment, it states that the treating physician is "obligated to obtain the patient's consent. If the patient is incapable of giving consent, the consent of a person authorized to do so must be obtained, unless an advance healthcare directive permits or prohibits the treatment.".

If there is no advance healthcare directive, the spouse is by no means automatically authorized to make these decisions for the incapacitated, injured person. Rather, an attempt would be made to determine what the patient's presumed wishes might be. This is a difficult undertaking. There are various ways to create an advance healthcare directive. The Federal Ministry of Justice and Consumer Protection has published a helpful brochure, which is available free of charge online. Additionally, a file with sample text modules can be downloaded as inspiration and guidance. Another option is to draft the advance healthcare directive together with a notary. However, lawyers are not medical professionals, and this service incurs costs that can range from €60 to €5,000. The treating physician can also be a contact person for an advance healthcare directive. The costs for a physician-drafted advance healthcare directive are not covered by health insurance and must be borne by the individual. They typically range from €130 to €200. Another option is to use online services that use a question-and-answer process to help you define the provisions you wish to make. A one-off online legal document costs approximately 30 to 40 euros. Several providers offer this service.
Once you have finalized your advance healthcare directive, you need to ensure that your treating physicians are aware of it. This isn't always easy. Imagine an emergency situation where you are picked up by paramedics in an ambulance; theoretically, you would need to have your advance healthcare directive readily available. Another difficulty lies in keeping the directive up to date. Laws can change, and medical advancements can create new situations that affect the wishes expressed in the directive. Keeping track of these two issues continuously is not simple. The speaker's suggested solution is explained below.

Power of attorney

An advance healthcare directive should always be combined with a power of attorney. The latter is necessary if you become wholly or partially unable to manage your own affairs. Returning to the accident example, without a power of attorney, a legal guardian (§ 1896 of the German Civil Code) would be appointed in this situation to determine the presumed wishes of the injured person.
In a power of attorney for health care and personal welfare, you specify who is authorized to make decisions on your behalf. Complete trust in this person is a prerequisite.
It's important to know that a general power of attorney isn't recognized for all business transactions. Institutions like banks often require their own specific powers of attorney. They insist that the authorized person is properly legitimized. Therefore, you should also issue a bank power of attorney to a trusted individual in good time. Furthermore, the general power of attorney should explicitly state that it remains valid even after your death.

Practical solution: DIPAT

The speaker gave a detailed presentation on the online portal "DIPAT – the advance healthcare directive." When creating an advance healthcare directive online, users are guided through various topics in a structured interview. The result is an advance healthcare directive that reflects current medical and legal requirements. The documents are accessible online 24/7. Changes can be added to the document at any time. A unique feature of DIPAT is how it grants first responders and physicians access to the directive. Each customer receives a personal sticker, which they affix to the top right corner of their health insurance card. The sticker displays the patient's individual identification code. In an emergency, the first responder enters this nine-digit code on their tablet and accesses the stored documents directly. The health insurance card, along with the personal identification card, is one of the most important documents first responders look for in an emergency. And the customer doesn't have to go to any extra trouble to keep their advance healthcare directive readily available, as they always have their health insurance card in their wallet.

This system also offers another service: immediate notification of relatives. The moment the advance directive is retrieved externally using the nine-digit code, relatives are notified by SMS and email. They are therefore automatically informed immediately if the patient is admitted to a hospital and the advance directive is accessed.
Finally, the DIPAT portal continuously monitors important changes in legislation and medicine. The company informs customers of relevant new court decisions affecting advance healthcare directives. This service package costs €48 per year at DIPAT.

testament

The third element of comprehensive estate planning is the will. It is made unilaterally by the testator. The legal basis can be found in Section 1937 of the German Civil Code. For parents of minor children, it is important to determine who should become the children's guardian in the event that both parents die.
A will must generally be in writing. You can write it yourself by hand and don't need a lawyer or notary. Legal advice is usually advisable for larger estates. The will remains valid until it is replaced by a new one.

Since no one can predict whether and when a potential emergency will occur, it is strongly recommended to draw up an advance healthcare directive, power of attorney, and will early on. It makes no difference whether these are paid or freely available templates. Decisions about one's own life should not be left to others.

Further information at www.dp-makler.de

Summary: Prof. Dr. med. Gratiana Steinkamp, as published in Alpha1 Journal 1-2019.