Care directive

Due to an accident, stroke or old-age illnesses such as dementia, anyone can quickly and unexpectedly find themselves in a situation where they can no longer act independently.

Due to your own inability to act, it becomes necessary for someone else to act on your behalf. With a care directive, you can safeguard your interests in advance in the event that you need care.

The guardianship order is addressed on the one hand to the competent guardianship court with an appointment of a guardian, which examines the suitability of the person proposed by you to carry out the assigned tasks, and on the other hand to the future guardian himself/herself.
Both the guardian appointed by you and the guardianship court are bound by the guardianship order if it is not contrary to your best interests. The care directive is only applied if it is actually necessary due to your state of health.

If there is no guardianship directive, the local guardianship court will appoint a guardian. Even if your proposed guardian is unsuitable as such, the guardianship court will appoint another guardian - as far as possible from your immediate environment. The court then assigns certain areas of responsibility to the guardian it appoints.

In general, a care directive is not subject to any formal requirements, but it is advisable to draw it up in writing. You do not necessarily have to be legally competent when you draw up the care directive. It is sufficient that you declare your natural will, which includes your actual intentions, wishes, values and intentions to act.

Unlike the health care proxy, this is not a declaration of will in the legal sense.

It is possible to combine the care directive with a health care proxy. You can, for example, stipulate that the person authorised by you in the health care proxy should also be chosen as a guardian in the event of a need for care.
This can be useful to compensate for the later invalidity of individual points in the health care proxy. If someone you can trust completely is willing to take care of your affairs if necessary, a health care proxy is probably preferable to a care directive.

Contents of the care directive

You can use a care directive to regulate the following matters in advance according to your wishes.

• guardianship matters: You can determine who should be appointed as guardian as well as explicitly exclude persons as guardians.
• Health matters: for example, medical treatment and interventions
• Residence and housing matters: for example, placement in a home and the associated removal from your home as well as the organisation of your care
• Banking transactions and financial circumstances: however, this is only possible to a limited extent
• Freedom of movement: this includes "accommodation-like measures" such as measures involving deprivation of liberty

This means that in addition to expressing your will as to which person should be your guardian in the event that you need care, you also have the opportunity to express wishes regarding the performance of the guardian's duties.

Make sure to formulate your wishes as precisely as possible so that they can be implemented in the best possible way.
The contents of your guardianship order will be used by the court for monitoring purposes at the appropriate time. For example, the court monitors payment transactions on the account of the person to be cared for as well as compliance with the specifications of the care directive.
In contrast to the power of attorney for health care, the advance directive only authorises the person nominated as guardian to act once he or she has been appointed by the guardianship court.

To ensure that your care directive is up to date, you can renew it annually by signing it with a date and, if necessary, with witnesses. In this way, you can ensure that the care directive still corresponds to your own personal ideas, and it also makes it easier for the court to assess whether the care directive corresponds to your current will.
It is up to you to decide to what extent you want to use forms for drafting the advance care directive, but the forms do not release you from the obligation to carefully consider your advance care directive in advance and to effectively record your own will.

Note: Since 1 July 2005, the certification of your signature can also be carried out by local guardianship authorities. You can obtain further advice from these authorities as well as from lawyers, notaries and guardianship associations. In addition, hospital and old people's home social services often provide advice on care orders.

Keeping the care directive

You should keep the care directive in such a way that you and your relatives can access it at any time. It is also important to inform the appointed guardian about the care directive and its whereabouts. In this context, everyone who knows about the existence of a care directive is obliged to deliver it to the care court in the judicial care proceedings.

Note: It is important that when your need for care arises, the care court is informed immediately about the existence of the care directive and that it is submitted to the court. It is possible to register the advance care directive with the Central Register of Advance Care and to indicate its location.

See also "Registration of the health care proxy / care directive in the central register of health care proxy".

• Registration of the Lasting Power of Attorney / Care Decree in the Central Care Register
• Health care proxy