The importance of a health care power of attorney in times of crisis

An accident, sudden illness or dementia are all circumstances in which the person concerned may no longer be able to express his/her will. In those cases, what would happen if his/her relatives have to arrange certain daily matters, such as paying invoices, accepting or rejecting an inheritance, refusing medical treatment or exercising the right to vote at a general meeting? Once a person has become unfit, it is impossible for him/her to give a power of attorney.

Wat is a health care power of attroney?

If the person concerned has provided a special power of attorney, the so-called ‘health care power of attorney’, when he/she was still able to do so, then the mandatary(ies) designated therein may, on the basis of this power of attorney, continue to manage the wealth of the mandator (the person granting the power of attorney).

It recently became possible for the mandator to entrust the mandatary with the care of his/her person such as the exercise of his/her patient rights or the choice of a residential care center if residence at home is no longer possible. All in accordance with the guidelines set out in such a power of attorney.

Validity of the  health care power of attorney

In order to establish a valid health care power of attorney, it must meet a number of legal conditions. The main conditions are as follows:

• This power of attorney cannot be given verbally, it must be drawn up in writing ;
• The mandator may choose to give form to this power of attorney in an ordinary written document or in a notarial deed. A notarial deed will in any case be necessary if the person concerned gives power of attorney to perform any legal acts that are mandatory by notarial deed, such as the sale and donation of real estate or certain acts relating to wealth planning such as amending a marriage contract ; and
• This power of attorney must be registered in the central register kept by the Royal Federation of Belgian Notaries. The notary will take care of the registration if it concerns a notarial power of attorney. In the case of private power of attorney, the registration will be done by the registry of the Registry of the Justice of the Peace Courts.

A health care power of attorney vs ordinary power of attorney

If the health care power of attorney does not meet all the legal requirements, it remains in principle an ordinary power of attorney which is no longer valid if the person concerned becomes unfit. Which is precisely the essence of the health care power of attorney. Without any valid health care power of attorney, the Justice of Peace must be seized to have the unfit person placed under administration and to have a trustee appointed. This measure can only be taken by a judge and at the request of any person who has an interest in it. The appointed trustee can then continue to represent the interests of the protected person, under the control of the Justice of the Peace. Such intervention involves uncertainties and is, in short, the path to be avoided.

Customization of a health care power of attorney

The drafting of a health care power of attorney is and remains a custom work. Depending on his/her wishes, the person concerned may choose to give a power of attorney for all legal acts or only for certain of them. It is also very important to determine the time from which the health care power of attorney will be effective. Some mandators choose to give immediate effect to the power of attorney, which, incidentally, does not affect their own authority to perform the actions for which they give power of attorney. Others consider the power of attorney as a safety net and give it effect as soon as they are no longer able to manage their own assets.

A health care power of attorney and other wills

In addition to the special health care power of attorney, there are also declarations of intent concerning the management of acts of a highly personal nature that relate to the end of the life of a person. Just think of euthanasia, palliative sedation or organ donation. In principle, the special conditions that the law imposes on such declarations of will prevail over the rules of the health care power of attorney, although they can be incorporated into the drafting of such a power of attorney.