A prominent example relates to Michael Schumacher. After suffering a tragic skiing accident, he was in a coma for months. During this time, the world-famous Formula 1 racing driver was incapable of judgement and could no longer make his own decisions. Such a tragic event can strike anyone. Unexpected accidents or serious illnesses, which result in a person’s lack of capacity, or an inability to judge, such as dementia, occur time and again.
But who represents the concerns of a person incapable of acting and who represents them in, for example, property matters? Especially when it comes to decisions that cannot be postponed? Does KESB decide?
Since 1 January 2013, the instrument of the precautionary mandate has been introduced in the course of the entry into force of the new adult protection law. With a precautionary mandate , a person capable of acting can – in the event of his or her lack of capacity – instruct another person to take over the assets and personal care to the desired extent. This includes, for example, the administration of existing bank accounts and real estate, as well as representation in legal transactions or the decision when the person incapable of making a decision will transfer to a retirement home. It is also possible to integrate a living will with provisions on medical measures directly into the preventive mandate.
As soon as the KESB becomes aware of a person’s inability to pass judgement, it checks whether there is a corresponding precautionary mandate. If this is not the case, the KESB may appoint an adviser to decide on the interests of the person incapable of making a decision. The KESB’s discretion is relatively large.
Inconcrete terms, in order to safeguard one’s own interests and prevent the KESB from deciding on the affairs of the person incapable of making a decision, it is worth setting up a precautionary mandate – before any incapacity to make a decision occurs. If a precautionary mandate has been established, it can be deposited with the responsible KESB. Since the drafting of a precautionary mandate is complex due to the extensive scope for regulation and the legal formal requirements (handwriting or notarial deed) must be complied with, advice is highly recommended. Our civil-law notaries office will be happy to assist you in advising you and drawing up a precautionary mandate.