The Civil Code describes a person as having capacity of judgment who is not incapable of acting rationally because of their childhood, mental disability, mental disorder, intoxication or similar conditions. A person's capacity to make judgments can be lost permanently or only temporarily as a result of an accident or illness. If a person is incapable of judgement, he needs someone who will look after his interests. This authorized person can consist of a Precautionary mandate or a living will of the person who has lost capacity.

In the absence of an advance care directive or a living will, the law primarily mentions assistance with a right of representation for medical measures. The law also names in the following order the spouse or registered partner who leads a common household with the person lacking capacity; a person living in the same household as the person lacking capacity; the offspring the parents and finally the siblings. The prerequisite is that the persons mentioned regularly and personally support the person who has lost capacity.

Precautionary mandate

A person of trust can be appointed before the onset of incapacity. For this there is the so-called precautionary order. A person is determined who is the person lacking capacity of judgement right-hand traffic and regarding the asset care represents. It must be precisely formulated which tasks are assigned to which person. Appropriate compensation should also be determined. If there are no precise instructions, the person authorized to represent will decide according to the presumed wishes and interests of the person lacking capacity.

living will

After an accident or illness, it may be that you are no longer able to survive medical measures to decide. A living will ensures that the personal wishes of the person concerned with regard to medical measures are taken into account even in the event of incapacity. A living will can, for example, specify persons of trust, declarations of therapy goals or certain medical measures in the event of incapacity. A health care directive can be supplemented by a living will, whereby the living will takes precedence over medical measures. If there are no instructions in living wills, the authorized person decides according to the presumed wishes and interests of the person lacking capacity.


You can keep the advance directive yourself, whereby it should be ensured that it can also be found in the event of incapacity. The place of deposit can also be entered in the register of persons with the help of the civil registry office.

The place of deposit of a living will can be entered on the health insurance card, whereby doctors and other medical service providers can help. Nevertheless, it is advisable to inform a trusted person of the deposit location.

formal requirements

Like a will, the advance directive must be written by hand, dated and signed or publicly authenticated by a notary. This prevents elderly people in particular from signing ready-made papers from third parties without understanding their content. A living will must be in writing (also possible by machine). It must be dated and personally signed. If the form is not adhered to, the presumed will of the person lacking capacity is taken into account.