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Germany: Court Clarifies Requirements for Living Wills and Durable Healthcare Powers of Attorney

(Sept. 30, 2016) On July 6, 2016, the German Federal Court of Justice (Bundesgerichtshof, BGH) held that a statement in a patient’s living will that “I do not wish to receive life-prolonging treatments” was not sufficient to legally bind a patient’s representative to authorize removal of an artificial feeding tube. The Court also separately found that an authorized representative of a patient can only consent to or prohibit medical interventions in life-threatening situations if the written power of attorney sufficiently describes the measures and states whether the representative is empowered to consent to them or not.  (BGH, docket no. XII ZB 61/16, July 6, 2016,¶¶ 17, 47, BGH website (in German).)

Background

German law defines a living will as a written statement by a person of age, who is able to consent, concerning specific medical tests, treatments, or medical interventions in case he or she becomes incapacitated. When the person becomes incapacitated, the custodian who has a durable power of attorney to make health care decisions must examine whether the determinations in the living will correspond to the current living and treatment situation.  If this is the case, the custodian must ensure that the living will is implemented.  (German Civil Code, Jan. 2, 2002, as amended, § 1901a, ¶ 1, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 42, 2909; corrected at 2003 BGBl. I at 738, GERMAN LAWS ONLINE.)

If a custodian or an authorized representative consents to, does not consent to, or revokes the consent to a medical test, treatment, or medical intervention that is medically indicated and there is justified reason to fear that the person under custodianship will die or suffer serious, long-term detriment to their health if the measure is not carried out or is discontinued, approval of the custodianship court is required. (Id. § 1904, ¶¶ 1, 2, & 5.)  An authorized representative may only consent to, not consent to, or revoke consent to a test, treatment, or intervention if the power of attorney is in writing and expressly includes and describes these measures.  (Id. § 1904, ¶ 5, sentence 2.)

Facts of the Case 

The case involved a female patient, a mother of three daughters, who was born in 1941. She suffered a stroke in November 2011 and since that time had been artificially fed through an endoscopic tube.  In 2013, she lost the ability to verbally communicate after suffering a series of epileptic seizures.  Ten years before, she had drawn up a living will that stipulated, inter alia, that:

I do not wish to receive life-prolonging treatments, if it is medically and unequivocally determined that

  • I am in an unpreventable and immediate process of dying in which every life-sustaining measure would prolong that process and suffering, without any prospect of improvement;
  • there is no prospect of regaining consciousness;
  • there will be permanent and severe brain damage due to a disease or accident; or
  • an incurable and permanent failure of vital functions is inevitable.  (BGH, supra, at ¶¶ 1 & 2.)

The patient had also given a durable healthcare power of attorney to one of her daughters (the authorized representative) in the event of incapacitation.  The power of attorney included the power to “terminate life-prolonging measures.”  The authorized representative, with the consent of the attending physician, refused to terminate the artificial feeding, arguing that the termination would not be in accordance with the living will of her mother.  (Id.at 3-5.)  The other two daughters of the patient disagreed and initiated legal proceedings to remove their sister from her position as an authorized representative.  (Id. at 6.)

Decision

The Court stated that the text of a power of attorney must describe in a sufficiently clear manner the treatment measures listed in section 1904, paragraphs 1 and 2, of the Civil Code and state whether the authorized representative has the power to consent to or prohibit them.  (Id. at 17.)  A general reference to the provision in the Civil Code is insufficient.  These heightened requirements are only necessary for a situation in which there is a reasonable fear of death or long-lasting and severe damage to the health of the patient.  (Id. at 18.)  The Court held that the authorized representative in the case at hand would have been empowered to terminate the artificial feeding of her mother, because the power of attorney fulfilled the necessary requirements.  (Id. at 16.)

The Court decided, however, that by refusing to terminate the artificial feeding the daughter did not violate her duties as a representative, because the living will was not legally binding.  (Id. at 44.)  In the opinion of the Court, the wording of the living will was not sufficiently specific to establish the clear will of the mother to have the treatment terminated in the current living and treatment situation.   (Id. at 45.)  The wording “I do not wish to receive life-prolonging measures” did not address the specific question of whether to terminate or to continue artificial feeding.  The Court noted that the necessary clarification of the term “life-prolonging measures” could be achieved by naming specific medical treatments or referencing specific diseases or medical conditions.  (Id. at 47.)  In addition, the four different situations listed by the patient in the living will were too vague in the opinion of the Court.  In particular, the broad description of “permanent and severe brain damage” was not specific enough to conclude whether the patient wished to receive an artificial feeding tube in the current situation.  (Id. at 48.)

Reactions

Attorney Wolfgang Putz, who represented the two daughters not appointed as authorized representatives in the case, criticized the Court for “construing doubt for no reason.” He pointed out that the use of narrow and specific terms is regarded as risky in living wills.  (Constantin Baron van Lijnden, “Der BGH hat hunderttausende Patientenverfügungen zunichte gemacht” [“The BGH Has Invalidated Hundreds of Thousands of Living Wills”] (Aug. 12, 2016), LEGAL TRIBUNE ONLINE.)

The Foundation for Patient Protection, on the other hand, welcomed the decision of the Federal Court of Justice for bringing clarity to the legal requirements of living wills. It called on all Germans to review their living wills to see if they are valid.  (Press Release, Foundation for Patient Protection, Patientenverfügung: BGH sorgt für Klarheit [Living Will: BGH Brings Clarity] (Aug. 9, 2016).)

Prepared by Felix Beulke, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist.