Power of attorney

Provisional powers of attorney are established in the event that the party granting the power of attorney is no longer able to regulate his personal and pecuniary affairs himself, for example, due to an accident, illness or age. The authorized representative should then take care of the affairs of the principal.

The power of attorney is usually granted in particular for the purpose of avoiding the order of a care by the care court. If a power of attorney for precaution does not exist, the competent court will appoint a guardian, so that the guardian can then regulate the personal and property matters of the person concerned. As a rule, the care court tries to appoint the spouse or a relative as a caregiver. However, the court can also appoint a professional guardian, i.e. a stranger, as guardian if the court has doubts about the suitability of the spouse or relative, for example.

Unlike an authorized representative, a guardian is subject to the control of the guardianship court. In this respect, a guardian may offer more protection against abuse than the granting of a power of attorney.

In individual cases, it may also be unavoidable to order care despite an existing power of attorney. For example, there are cases in which it is legally not possible to act on the basis of a power of attorney. This is the case, for example, when an inheritance is rejected. If it makes sense to reject an inheritance due to over-indebtedness, only a guardian appointed by the guardianship court can do so. However, the guardian will usually be limited to the settlement of this individual matter. For this reason, a declaration is also included in the power of attorney to take precautions that the authorized representative should also be appointed as a guardian for these special cases. However, this declaration does not bind the court.

In external relations, it is advisable not to make the power of attorney subject to the condition that the precautionary case has already occurred. It is true that as a rule the authorized representative should only make use of the power of attorney in this case. However, such a restriction would have the considerable disadvantage for a third party that the third party (e.g. authorities, bank or other contractual partner) usually cannot even check whether the insured event has occurred. Unless the third party wants to take a very substantial risk, he would have to refuse a transaction with the authorized representative or reject a declaration from him. The power of attorney would then lose its purpose.

The above means that the issuance of a power of attorney is associated with an extremely high risk, because declarations and orders of the authorized representative to the detriment of the principal are usually effective and the principal must accept them as valid against himself, even if the authorized representative has exceeded his competences in the internal relationship. This also applies, for example, if the authorized representative makes use of the power of attorney although the precautionary case has not yet occurred. For example, the authorized representative can dispose of the principal's account immediately after granting the power of attorney, he can sell and transfer assets and, if necessary, also dispose of or encumber real property.

For this reason, such an extensive power of attorney should only be granted to those persons who enjoy the unrestricted trust of the principal.

The precautionary power of attorney itself regulates which competences the authorized representative has in the external relationship with third parties such as authorities, banks, contractual partners. A distinction must be made between the legal relationship between the principal and the authorized representative on which the power of attorney is based ("internal relationship"). In other words: The power of attorney regulates what the authorized person can do. The basic relationship determines what the authorized representative is allowed to do.

The basic relationship can and should be regulated in writing in a separate document. This is often waived between spouses. However, the regulation of the basic relationship is of particular importance for the authorized representative. The proxy is liable under certain circumstances if he or she is responsible for the fact that the principal has suffered damage as a result of his or her activities. It is therefore precisely in the interest of the authorized representative to limit his liability. The authorized representative is also obliged to account to the principal or, if applicable, to his heirs, i.e. in particular to provide evidence of all expenses and income, which may be difficult depending on the duration of the activity. The authorized representative, who as a rule has only attended to the interests of the principal on the basis of family or friendship, may then find himself in a position of responsibility.