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.
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:
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of attorney does not meet all the legal requirements, it remains in principle an ordinary power of attorney which is no longer valid if the person concerned becomes unfit.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.
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.
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.