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Living will and durable power of attorney for healthcare in the corona crisis

In the current situation of the corona crisis, the necessity of drawing up or renewing a living will and a durable power of attorney for healthcare is increasingly being reviewed.

It is important to know that living wills only apply where patients are no longer in a position to decide for themselves. In most cases, however, when someone has to be taken to the hospital, including because of corona, this is not the case because the patient is still responsive.

Even if patients are no longer able to give consent, however, for instance because they have been sedated due to artificial respiration, a living will only take effect when very specific situations that have to be mentioned in the living will, are occurring, such as when the person is in the immediate process of dying.

In corona cases, these conditions are rarely given, unless it is clear that the patient will die despite life-sustaining measures.

Practice has shown, however, that in many cases – and independently of corona – it is worthwhile having a living will reviewed and adapted, since jurisdiction significantly increased the requirements for its effectiveness in recent years. As a result, many older living wills have now become ineffective and can no longer be used precisely at times when they are most urgently needed.

Irrespective thereof, a durable power of attorney for healthcare plays a major role. It states who is authorized to act on a person’s behalf if that person is no longer able to do so independently. In times in which contact restrictions exist and it is not only prohibited to visit one’s relatives in nursing homes and senior citizen residences, but also in hospitals, a durable power of attorney for healthcare is of enormous importance. This is quite independent of a potential sedation for the purposes of artificial respiration, in which it may of course also be of importance.

The authorized representative will be able to use the durable power of attorney for healthcare to act on behalf of the patient not only outside the hospital, but also towards physicians who, without a durable power of attorney for healthcare, do not even have to talk to relatives and follow their decisions just because they are a spouse or child.

It is therefore recommended that anyone who has a living will should also draw up a durable power of attorney for healthcare or even a general power of attorney to enable relatives or confidants to safeguard their interests.

In any event, not only in view of corona, it needs to be emphasized once again that everyone should have a living will and a durable power of attorney for healthcare.This applies irrespective of age, because young people may also be temporarily unable to make decisions, for example after a car accident, and then be dependent on these documents.

If you have any questions on these topics, please do not hesitate to contact us for further information at any time.

Asset and business succession – now more topical than ever!

Like the European Union and many states around the world, the federal government and many German states have spent enormous amounts of liquidity to at least mitigate the consequences of the corona crisis for the economy and the population. There is also the promise to support businesses in reconstruction with major funding measures once the crisis has come to an end.

But even if Germany is the country that will most likely be able to provide the enormous sums of money, the issue of debt reduction will remain a topic of discussion for the foreseeable future.

In this context, the Inheritance Tax Act might once again come into focus. The law has already been amended twice in the past decades on the grounds of unconstitutionality, in particular due to the undervaluation of real estate and business assets. While the new version of the Inheritance Tax Act has largely driven the valuation of real estate assets closer to market values, the option of achieving an inheritance tax exemption of 85% or even 100% for business assets still exists under certain conditions.

In view of the enormous pressure to pay off the mountain of debt caused by the corona crisis, it is therefore increasingly likely that an adjustment of the inheritance tax exemption for business assets will be discussed again. Not least by the German states, which would benefit from revenues from an increased inheritance tax This may then well be perceived as a lesser evil than the property tax for the wealthy, which is already discussed today, or special levies for wide sectors of the population.

If not already done, the current options under inheritance tax law should therefore be used for the proper planning of asset and business succession so that they can be implemented before the impending discussion about the possibilities of refinancing corona debts.

We will gladly support you in your arrangements at any time.

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Status: April 16, 2020


Gerd Seeliger

Dr. Gerd Seeliger


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