This is what's behind the new emergency spousal representation law!

This is behind the new spouse's right to represent!

It has been decided: In the future, the legal reform § 1358 BGB should enable an emergency representative right for spouses in medical acute situations. For example, spouses should be able to be represented if the partner can no longer take over his or her health care - for example due to unconsciousness or other disease states.

Here you can find out what exactly the reform contains, why it makes sense for every married person of all ages, and why she never replaces a personally declared power of attorney!

When is the law valid?

On March 5, 2021, the Bundestag accepted the draft law formulated by the Federal Government to reform the guardianship and support law. This reform will come into force in January 2023.

What lasts for a long time will finally get better: the new reform comes into force in January 2023 and makes the marital emergency representation possible.

From then on it will be acute for users. From then on, spouses and partners in registered communities may represent the other in matters of health care as soon as they are no longer able to make decisions themselves.

How was it before?

According to previously applicable law, spouses cannot make any decisions for your partner about medical approaches if you or he is no longer able to do so. They are only responsible if you or he explicitly ordered as a legal supervisor or a precautionary power of attorney has been granted in advance.

Problem: Statistically speaking, most people assume that their spouses or the nearest relatives may be responsible in an emergency.

This is a real problem. Because the vast majority of people, especially the younger ones and even the target group up to 59 years old, intuitively assume that in a medical emergency situation of the spouses may decide for them. This is shown by a Forsa study, of which only two out of 100 surveyed in the age group for 18–29 years of giving a preventive power of attorney. In the age group 45–59 years there were only 23 out of 100 respondents. But if there is actually a health acute situation, there is no way to take over the decision -making power without power of attorney. In addition, a living will is also helpful.

In medical emergency situations, the law ensures the automatically transferred decision -making force to spouses - and thus gets closer to the desire of people in such an acute situation.

The new law, which enables automatic representation in the future, thus meet the desire of people that in the event of a partnership, the partner or the children are entitled to represent. The reform only comes into force from January 2023, but it is still worth finding out. Above all, because this reform only applies in an emergency, but still does not include any extensive areas. To anticipate it: It still remains important to create a power of attorney and a living will as part of personal provision.

What does the reform bring and why is a precautionary power of attorney still important?

The change in the law according to § 1358 BGB will in future be given a right to represent the health of health care, which relates to spouses. This right includes decisions about investigations and treatments and the reasonable decisions in the close context - for example, treatment contracts or claims to third parties.

Anyone who really wants to know each other in safety and according to their individual wishes continues to focus on the specially created and in writing.

However, the new regulations are expressly only intended for emergencies. The addition that the power of attorney is limited to six months illustrates this. In addition, the treating doctor must confirm the treating doctor in writing that the medical requirements for representation are actually met. In addition, areas such as residential affairs, other official issues and asset are not included.

All of these are valid reasons not only to rely on the power of attorney, but also to take care of a written power of attorney.

What if you don't even want marriages that are automatically authorized to make decisions in an emergency?

Very important: With the new regulation, abuse is also counteracted by excluding a spouse representation if the sick person has previously expressed a contrasting will or authorized another person in a preventive power of attorney. The right to represent the emergency representation does not apply either.

If you do not want the spouses to automatically take over the decision-making power, a living will with an individual mention of reference and caregivers is all the more worthwhile.

In addition, when the emergency representation is valid, the court has to appoint a legal supervisor after three months. Attention: Even if the court takes into account degrees of kinship, this does not necessarily have to be the spouse or the children. If it turns out that, for example, a conflict could arise if possible inheritance, more related relatives from the power of attorney are excluded.

Conclusion: Excellent legal reform, which, however, continues to make the power of attorney and living will.

So the conclusion is: The new law is definitely a good and important step towards the needs of people in medical acute situations. Nevertheless, there are important areas that this law does not include. At the same time it is limited. And it does not respond to the individual's individual wishes.

So the recommendation remains very clearly to take care of a comprehensive power of attorney, including a living will as possible. In this way, individual regulations can be made, preferred confidants and details on measures can be defined. And without a time limit and related to all areas of life and health.

by Jana Lorenz

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