Power of Attorney for Health Care

Power of Attorney - A power of attorney is a declaration of intent under private law by which a person with legal capacity (the principal) authorizes one or more trusted individuals (agents) to make legally binding decisions in all or specific areas of life in the event that the principal becomes unable to conduct business or act on their own behalf. Without such a power of attorney, the guardianship court appoints a legal guardian - even for spouses and close relatives, as there is no automatic right of representation under German law.

Content, Scope, and Legal Basis

The power of attorney may cover all areas of life as a general power of attorney or be limited to specific areas of responsibility. Typical areas covered include healthcare, determination of residence, mail and telecommunications, dealings with authorities and courts, and asset management. The legal basis is provided by Sections 164 et seq. of the German Civil Code (BGB) (Agency) in conjunction with the provisions of guardianship law (Sections 1814 et seq. BGB).

For property owners, the power of attorney is of particular importance. If the attorney-in-fact is to be able to sell, encumber, or create real property liens on real estate, the power of attorney must, pursuant to § 29 GBO, be in a form accepted by the land registry office-in practice, this means notarization in accordance with § 128 BGB. A purely private-script power of attorney is not sufficient for land registry transactions and will be rejected by the land registry office.

The notarized form also offers the advantage of evidential value: The notary confirms the principal’s legal capacity at the time of execution, which makes subsequent attempts to contest the power of attorney more difficult. The costs are governed by the Court and Notary Fees Act (GNotKG) and are calculated based on the principal’s net worth-for assets of 250,000 euros, notary fees amount to approximately 300 to 400 euros.

We recommend registering the power of attorney in the Central Register of Powers of Attorney maintained by the Federal Chamber of Notaries. This allows the guardianship court to quickly determine in an emergency that a power of attorney already exists and avoid ordering guardianship. Registration costs a one-time fee of between 13 and 26 euros.

Power of Attorney and Real Estate Ownership

Anyone who owns real estate should explicitly stipulate in the power of attorney whether the agent is authorized to sell, rent, manage, encumber the property, or initiate structural changes. While a general power of attorney does, in principle, include these powers, it is advisable to formulate the real estate power of attorney in specific terms-both for acceptance by the land registry office and for legal certainty vis-à-vis buyers and banks.

The power of attorney becomes particularly relevant when the principal becomes in need of care and the property must be sold or encumbered to finance that care. Without a valid power of attorney, such a sale is only possible through a lengthy guardianship proceeding requiring court approval under Section 1850 of the German Civil Code (BGB)-a process that can take several months.

Furthermore, the power of attorney should clarify whether the agent is authorized to enter into or terminate lease agreements, commission maintenance work, and manage building maintenance fees and utility costs. For rented properties, full capacity to act is crucial-a months-long absence of the owner without a valid power of attorney can lead to significant loss of rent and maintenance backlogs.

Practical Tip for Nuremberg and the Metropolitan Region

We recommend that property owners in the Nuremberg metropolitan region establish a power of attorney early on-ideally together with a living will and, if applicable, a will. Nuremberg notary offices, such as the one at Fünferplatz or on Fürther Straße, provide advice on power of attorney for real estate matters and are familiar with the requirements of the Nuremberg Land Registry from daily practice.

Particularly for rented apartment buildings or commercially used properties in neighborhoods such as Gostenhof, St. Johannis, or Erlenstegen, seamless capacity to act in property management is crucial. We advise designating a substitute agent in addition to the primary agent, in case the primary agent becomes incapacitated.

Anyone who owns multiple properties or holds shares in real estate companies should also extend the power of attorney to cover shareholder matters. In practice, the ability to act on behalf of the owner fails in the case of GbR (civil law partnership) interests or WEG (Condominium Act) units without an explicit provision, because other shareholders or the property management company do not readily accept the power of attorney.

Frequently Asked Questions

Do I need a notarized power of attorney if I own real estate?

In principle, a power of attorney is also valid in private written form. However, as soon as real estate transactions-i.e., sale, encumbrance, or deletion of land registry entries-are to be covered, the land registry office requires a publicly certified or notarized power of attorney. We therefore strongly recommend that property owners use the notarized form to avoid losing valuable time in an emergency.

What happens if I don’t have a power of attorney?

If a person becomes legally incapacitated and no power of attorney exists, the guardianship court appoints a legal guardian. This can be a relative, but also a third party or a professional guardian. The guardian is subject to judicial oversight and requires separate approval from the guardianship court for many decisions-such as the sale of a property. This process is time-consuming and significantly restricts freedom of action.

Can I revoke the power of attorney at any time?

Yes. As long as the principal is legally competent, the power of attorney can be revoked at any time without formalities. However, we recommend declaring the revocation in writing, requesting the return of the original document, and having the revocation entered in the Central Register of Powers of Attorney. In the case of notarized powers of attorney, the revocation should also be carried out through the notary to ensure legal certainty vis-à-vis third parties.

Can the agent sell the property to himself?

Only if the power of attorney contains an explicit right to contract with oneself (Section 181 of the German Civil Code (BGB)). Without this exception, the agent is not authorized to enter into contracts with himself on behalf of the principal-a sale to himself would be invalid. If the authorized representative is to be able to transfer the property to themselves or to close relatives, this must be expressly permitted in the power of attorney and notarized.

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