Preventive power of attorney with later dementia difficult to change

BGH: Also with change of opinion of the supervised authority is effective
Karlsruhe (jur). Those who provide caregivers with a precautionary power for relatives can not simply change them again if they have a later dementia because of a different opinion. A simple change of mind of a person who is no longer capable of doing business can not eliminate the effectiveness of a precautionary power issued in the past, the Federal Court of Justice (BGH) ruled in Karlsruhe in a decision announced on Wednesday, 16 March 2016 (Ref .: XII ZB 498/15) , Moreover, this alone does not constitute a reason for a court-appointed caregiver to regulate the legal affairs of the caregiver.
The dispute involved a man born in Westphalia in 1925, who in April 2012 with his wife gave two of his children comprehensive preventive power of attorney. These should take care of the legal affairs of the parents in the care case, especially since they also lived in the same house. The wife had also assigned the son the house with the granting of a lifelong free housing law.

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After the father was suffering from dementia and now the two children should settle the affairs of the man, it came to a dispute with another daughter.

This accused her siblings that they did not really care about their parents. She therefore suggested the appointment of a professional guardian at the district court. The siblings would put their personal interests above those of the parents because of the dispute. Her father, who has suffered from dementia, repeatedly stated that he no longer supported the previously given power of attorney.

Both the district court and the district court then appointed a supervisor to take care of his father's affairs.

But it is not that easy, the BGH clarified in its decision of 17 February 2016. Basically, no supervisor should be appointed if a power of attorney exists. Only if the agent is unsuitable for the activity, for example, if there are serious doubts about his integrity, can a professional advisor be declared competent.

Even if the person who is no longer able to work changes his / her opinion and repeatedly opposes the granting of power of attorney, this alone is no reason to appoint a professional advisor. The purpose of the precautionary power is to strengthen the right of self-determination of the affected parties, but state influence through care should be avoided. The power of attorney in healthy days serves to determine persons who take care of the legal affairs, if one is no longer able to do so.

Once a supervised person is incapacitated for business, he or she can only revoke their once granted authorization in exceptional cases. An illness-related change of opinion of the disabled person is not sufficient. The change of opinion alone does not justify the appointment of a professional guardian.

In the case of the dispute, the lower courts did not sufficiently examine whether and why the two authorized siblings were allegedly unable to take care of their father's affairs.

The objection that the authorized siblings did not carry out actual care services such as trips or their organization was irrelevant. For a precautionary power is no obligation to actual care services. It should rather make a legal care superfluous.

The BGH referred the case back to the district court. This must now check whether the authorized siblings "honestly" get their father's affairs. It was also necessary to check whether the father was still capable of business at the time of granting the power of attorney. A personal hearing of the siblings and the person concerned is required for this.

But even with existing deficiencies, the precautionary power can not be revoked without further notice. Instead, a court-appointed inspector could initially assist the authorized siblings. Only if these measures fail and the plenipotentiaries "appear with sufficient certainty as unsuitable", the revocation of the precautionary power is proportional, so the BGH. fle / mwo