Unpleasant surprises regarding presumed rights of representation between spouses/registered civil partners

In consulting practice, one often finds the assumption that spouses/registered civil partners are allowed to make comprehensive decisions for each other if the other becomes incapacitated due to illness or accident.

This is not the case, which can lead to unpleasant surprises.

On 1 January 2023, the reform of guardianship law (Betreungsrecht) introduced the so-called emergency representation right for spouses (Notvertretungsrecht, Section 1358 of the German Civil Code (BGB)) for the first time. Previously, statutory power of representation was only provided for in relation to transactions covering basic living expenses (Section 1357 (1) BGB). Put simply, this made it possible to represent the other spouse ‘within the scope of weekly shopping’. However, there was no further authorisation. 

Even with the introduction of the right of emergency representation for spouses (Notvertretungsrecht), this has not changed significantly and only within the scope of health care. In detail:

‘If one spouse is legally unable to manage their health care affairs due to unconsciousness or illness,’ the other spouse (Section 1358 (1) BGB) may, for a maximum period of six months, essentially:

• consent to or refuse examinations, medical treatment and surgical procedures (with restrictions under Section 1358(6) in conjunction with Section 1829 of the German Civil Code (BGB))
• conclude and enforce treatment/hospital contracts or contracts for urgent rehabilitation measures,
• decide on measures that may deprive the patient of their physical liberty (such as bed rails) to a limited extent, and
• assert claims against third parties (e.g. social security institutions) on the basis of the illness.

During this period, the spouse is also exempt from medical confidentiality obligations towards the patient. 

The spouse/partner must exercise the right of representation in accordance with the wishes or presumed will of the patient.

However, this right of emergency representation does not apply if the partners are separated or if a power of attorney has been granted that includes the aforementioned rights, or if guardianship (Betreuung) has been established with this area of responsibility. However, representation vis-à-vis the spouse may be objected to in advance or this decision may be entered in the Zentrale Vorsorgeregister (Central Register of Lasting Powers of Attorney). In some cases, the approval of the Betreuungsgericht (guardianship court) is still required.

In order to exercise the right of emergency representation, a doctor must also confirm in writing that the requirements are met (cf. Section 1358 (4) BGB).

The explanations make it clear that representation in (other), especially financial matters, is not covered. 

Extensive representation rights for spouses can only be achieved by expressly granting them power of attorney before an emergency arises. In addition to bank power of attorney, it is generally advisable to grant power of attorney (Vorsorgevollmacht) in order to ensure that your spouse/partner is able to act on your behalf. Further important information can be found here.

In the power of attorney (Vorsorgevollmacht), ideally in combination with a patient declaration (Patientenverfügung), it is possible to comprehensively and detailedly regulate which rights the partner (or even a third party) should have in the event of incapacity and which treatment (or non-treatment) is desired. 

We would be happy to advise you comprehensively on the issue of emergency representation rights as well as on questions regarding power of attorney and patient declarations.