I take care of myself! Power of Attorney in easy language

Summary

The “power of attorney in easy language” is a consulting concept to support people with disabilities to create proxies. It shows a way how to give other persons, by means of a legal document, power to issue declarations and perform legal acts for an individual.

Issue addressed

Avoiding guardianship measures by creating legally valid powers of attorney.

Background information

The description is taken from a publication in easy-to-understand language in which the author, Kerrin Stumpf, develops a concept how proxies and power of attorney can be used as alternatives for guardianship.

Description of practice

The “power of attorney in easy language” is a consulting concept to support people with disabilities to create proxies. It shows a way how to give other persons, by means of a legal document, power to issue declarations and perform legal acts for an individual. The general power of attorney refers to all matters, but it can also be limited only to certain matters. The authorizer may revoke the authorization at any time.

Who creates a power of attorney claim for themselves the freedom and the self-determination to exercise a fundamental right, to take their own responsibility and to care for themselves. Herein lies the essential difference to the legal representation by a legal guardian, who controls and regulates the affairs of a person. When representation is organised by proxy, the authorizers act in their self-determination. For many people with disabilities it is important to do this for themselves. This should also be perceived to be equal to legal protection.

For reasons of legal certainty, a power of attorney should be formulated without conditions. It will then be better accepted by external parties. In the internal relationship the authorizer and the authorized representative can both agree that the power of attorney should be used only in an emergency.

A power of attorney remains in effect even if the authorizers are legally incapacitated. From this moment they can not revoke it.

Any legally competent person may appoint a proxy. Basically, the capacity is the rule, its absence is the exception. An authorization given by an incompetent person is void. Therefore, at the time of giving the power of attorney no doubt should exist about the capacity of the authorizer. This could e.g. be testified by the family doctor. The capacity is determined by the following five skills:

  • A person understands what is at stake.
  • The person understands the consequences of the decision and has an idea of alternative courses.
  • The person considers the possible consequences and makes a decision.
  • The person can access the own situation realistically.
  • The person can express their will.

The proxy requires no special form and may be given orally. However, the power of attorney must be granted in writing.

By legalization or notarization the legal certainty of the power increases. Some institutions require public attestation or notarization as a standard measure. Financial institutions usually recognize only powers on their own bank forms or notarized certified or authenticated proxies. In order for a proxy of a person with disability to develop its purpose, it is of central importance that it is accepted in legal relations. This is ensured by a public notary.

Analysis

This concept is an important contribution to the discussion about alternatives to full or partial guardianship. It allows people with disabilities to exercise their self-determination without the involvement of Courts or other public services.

It is an important aspect of this model that it is based on laws already existing in all European countries. Thus it is a very appropriate means to create more possibilities for support and self-determination while legal reforms of the guardianship system are still under way.

A word of caution, however, is necessary in regard to safeguards for the person with intellectual disability. The power of attorney is not reviewed regularly and the authorised representative is not supervised. Therefore the use of this instrument needs to be embedded in structures that ensure regular revision and supervision.

More information

The text of the publication in German language: Vollmacht

Federal Association for physically and multiple disabilities e.V.

http://www.bvkm.de

2014 Inclusion Europe. Rue d'Arlon 55, 1040 Brussels, Belgium