Retirement The important facts: benefits of an advance care directive (ACD)

Whether due to accident, illness or advancing age, a sudden or gradual loss of decision-making capacity can affect anyone. When it occurs, the consequences for their partner and wider family are often far-reaching.

This applies above all to wealthy individuals, as they often have assets such as real estate or company shares which are particularly affected by a loss of decision-making ability.

A person who has lost their decision-making capacity needs someone who understands their interests and who can organize their everyday affairs. The law allows the spouse or registered partner to perform this role. However, there are certain things they cannot do, such as buy or sell a property. This requires the involvement of the Child and Adult Protection Authority (KESB). If you live alone, a legal advisor will be appointed to make decisions on your behalf.

You can also appoint a trusted person (or persons) in advance. Bear in mind that more than one person can be named. You should decide early on who you would like to care for you and make decisions on your behalf when you can no longer do so.

The representative of the incapacitated person does not have to be a family member. It makes sense to name alternative representatives, in case the designated person cannot or will not perform the role.

If more than one representative is named, do not forget to clearly stipulate the relationship between them. For example, if you want your children to make decisions about your well-being, you should specify which child has the final word to prevent possible impasses if opinions differ.

An ACD must be handwritten by you, signed and dated. Remember that any handwritten amendments must also be marked clearly, and also signed and dated. If you cannot draw up an ACD by yourself, it can be drawn up with a notary. In the case of a publicly notarized ACD, the notary checks it for accuracy and confirms your decision-making capacity. Remember that any change to a publicly notarized document must also be notarized.

You are advised to inform the person(s) named as representative(s) in the ACD of its content and your expectations.

You are also advised to store the ACD somewhere where it can easily be found by an outside party. Remember that the KESB will only recognize the original of your ACD. Copies are considered to be for information only and are not legally valid.

An ACD is valid until revoked and can be amended at any time. It is also void if the person concerned regains their decision-making capacity.

If loss of decision-making capacity occurs, the KESB checks whether a valid ACD exists and whether the person(s) selected is/are suitable for the tasks concerned and whether they are willing to take on the mandate. The person(s) commissioned will then receive a certificate for legitimation known as a validation decision.