Living wills: Important decision of the Federal Court of Justice (BGH)

Stricter requirements for the content of health care proxies and the specificity of living wills following new BGH ruling

In its decision (XII ZB 61/16) of 6 July 2016, the Federal Court of Justice clarifies both the requirements for the establishment of control care within the meaning of Section 1869 (2) sentence 1 BGB and for the validity of a living will within the meaning of Section 1901a (1) BGB. In doing so, he focuses primarily on the legally required protection of life by evaluating any doubts about the will of the person concerned in favour of life-sustaining medical treatment.

The Court firstly explains the formal and substantive requirements for the creation of an effective power of attorney. Secondly, it clarifies the relationship between a lasting power of attorney and guardianship. Furthermore, it uses the decision to further specify the requirements for a binding living will.

§ Section 1904 I BGB stipulates that the guardian's consent to an examination of the state of health, medical treatment or a medical intervention generally requires the authorisation of the guardianship court if there is a justified risk that the person under guardianship will die or suffer serious and prolonged damage to their health as a result of the measure. Conversely, refusal or revocation of consent to such measures also requires the authorisation of the court if the measure is medically indicated and there is a justified risk that the person being cared for will die or suffer damage to their health if the measure is not carried out or is discontinued.
This regulation applies not only to the guardian, but also to the authorised representative.

§ However, Section 1904 (5) of the German Civil Code stipulates that in this case, the relevant healthcare proxy of the person concerned must expressly include the medical measures in question, i.e. the examination of the state of health, the treatment and the medical intervention, and must be issued in writing.
§ Section 1904 (1) sentence 1 and (2) BGB do not have to be included verbatim in the power of attorney. However, quoting this standard is not sufficient either. What is required is that the decision-making authority of the authorised representative for the incapacitated person with regard to consent, non-consent or revocation of consent to the medical measures specified in Section 1904 BGB must be expressed sufficiently clearly in the text of the power of attorney. It must be clear from the power of attorney that the authorised representative's decision could cause serious and prolonged damage to health or even lead to the death of the principal. On the one hand, this should make it clear to the principal that he or she is delegating decision-making authority to the authorised representative for situations in which there is a risk of death or serious long-term damage to health. On the other hand, third parties should also be able to understand that it is in line with the wishes of the person concerned to entrust the authorised representative with decisions on healthcare matters.

The BGH is of the opinion that the high requirements for the formal and substantive requirements of a power of attorney do not represent a disadvantage compared to a guardianship. After all, no legal advice is usually given before a power of attorney is granted, whereas the appointment of a guardian is subject to judicial review. The high requirements for a health care proxy are primarily intended to protect the principal.
The Federal Court of Justice clarifies that a written power of attorney and the designation of medical measures are not required if the authorised representative decides to continue life-sustaining measures. This is justified by the fact that in this case there is no justified risk of death or serious and prolonged damage to health, which is otherwise required in Section 1904 para. 5 in conjunction with para. Para. 1 BGB otherwise requires.
Both the carer and the authorised representative must determine the wishes of the person concerned with regard to medical treatment. If the person concerned has made a decision themselves by means of a living will, the authorised representative may only help to enforce this will.

The question then arises as to the formal and substantive conditions under which a healthcare proxy can be drawn up. In its decision, the Federal Court of Justice clarified this question in more detail and significantly increased the requirements for an effectively binding living will. It is necessary that specific decisions by the person concerned regarding consent or non-consent to certain medical measures can be taken from the living will. General instructions, such as the request to allow the patient to die with dignity if treatment is no longer expected to be successful, are not sufficient. Even the formulation that "no life-sustaining measures" are desired is not in itself sufficiently specific for the cancellation of life-sustaining measures for a binding living will. Basically, all general formulations that leave some room for interpretation should be avoided.
Rather, the living will must be supplemented by a very precise description of the medical situation to which it is to apply. The patient can fulfil this requirement by naming certain medical measures and referring to sufficiently specified illnesses or treatment situations. The person concerned must describe what he or she wants and does not want in a particular life and treatment situation.
Since the person concerned cannot foresee the specific treatment situation, the transfer of the right to make the final decision to the authorised representative with a sufficiently specific power of attorney for healthcare is of central importance.
If there is no effective living will that applies to the current situation, the authorised representative must determine the treatment wishes and the presumed will of the person concerned. Additional evidence is required for this. However, a living will that does not fulfil the formal requirements and therefore has no direct effect can also be taken into account as a treatment wish. In this case too, however, it is necessary for the treatment wishes to be sufficiently specific. If the wishes of the person concerned cannot be determined even after all available sources of information have been exhausted, the high legal interest in life requires that decisions be made in accordance with the best interests of the person concerned, prioritising the protection of their life.
In its decision, the Federal Court of Justice also addressed the question of the necessity of supervisory care. In the case of an effectively granted power of attorney for healthcare, so-called "monitoring support" can be used to ensure that the authorised representative is monitored if the principal is no longer able to monitor the authorised representative and, if necessary, revoke the power of attorney. However, supervision may only be established if it is necessary. The mere fact that the principal is no longer in a position to monitor the authorised representative cannot justify the need for supervision, as the power of attorney is intended for this situation in particular. There must be additional circumstances that make it necessary to set up a monitoring authorisation. It is necessary that there is a concrete suspicion that the power of attorney does not fulfil the need for care. There must therefore be concrete evidence that the authorised representative is no longer acting in accordance with the agreement and the interests of the principal. This may be the case if there are indications that the authorised representative is unable to cope with the scope and difficulty of the transactions to be carried out or if there are concerns about the honesty and suitability of the authorised representative. Specific indications that the authorised representative is clearly disregarding the wishes of the person concerned as set out in the living will are sufficient.
If there is agreement between the authorised representative and the attending physician as to which course of action corresponds to the wishes of the person concerned, even a measure in accordance with Section 1904 (1) and (2) BGB no longer requires court approval. There is mutual control between the carer and doctor in the decision-making process, which protects the patient from any abuse of the authorised representative's powers. If there is agreement between the carer and the treating doctor, it will only rarely be the case that they do not act in the interests of the principal, which is why there is generally no need for a supervising carer in this case constellation.
This decision relates to standard formulations in health care proxies and living wills. Privately written and notarised precautionary deeds must now be checked to see whether they meet the requirements for certainty laid down by the Federal Court of Justice. Numerous templates for advance directives must be adapted to the supreme court judgement. Due to the considerably increased requirements for a sufficiently specific living will, it is questionable whether legal knowledge and the use of a formulated declaration alone are sufficient for the creation of a precise and therefore effective living will. In future, it may therefore be necessary to consult medical expertise in order to formulate an advance directive.
Existing health care proxies should also be clarified to the effect that the decision-making authority of the authorised representative also includes the final decision desired by the principal.

It is questionable whether a tightening of the requirements for a living will will take account of the right to self-determination of those affected, as a living will now requires more effort to formulate and (probably) often requires the involvement of medical expertise, which will probably not be necessary in future due to the effort involved.

Trainee ward clerk Charlotte v. Morr