By establishing a power of attorney, another person – often a spouse or partner, a family member or another trusted person – can be granted the right to act on behalf of another person in matters relating to health and financial affairs. Until 2022, without a power of attorney, it was not possible to act on behalf of a spouse under German Law. This applied even in emergency situations. The according legal framework was changed in 2023 with the creation of the so-called right of emergency representation for spouses (“Ehegattennotvertretungsrecht”). However, the type of representation for spouses does not replace an ordinary power of attorney, as the scope of this legal right of representation is limited in time and shall only apply to certain actions. In addition, there may be situations in which (automatic) representation by the spouse is not desired.

1. Content of the right of emergency representation by spouses

The right of spouses to represent each other in emergencies (§ 1358 BGB) is a legal provision in German Law that allows spouses to automatically represent each other in health matters in emergency situations. It is designed to create a practical, quick and uncomplicated framework for action when decisions have to be made and actions taken in a medical emergency and no power of attorney has been granted. However, the right of emergency representation by spouses only covers certain actions in health matters, including the following measures:

• Consent to examinations of the state of health, medical treatment or surgical intervention
• Conclusion and enforcement of treatment contracts, hospital contracts or urgent rehabilitation measures
• Certain temporary measures involving deprivation of liberty

In addition, further restrictions apply: 

• The provision applies to emergencies only and was created exclusively for ‘urgent’ cases. The prerequisite is therefore that the spouse is unable to make independent decisions regarding health matters due to illness, an accident or other substantial circumstances. In other matters, the spouse may not invoke the right of emergency representation.

• The regulation also applies to spouses and registered civil partners (LPartG) only. A non-marital partnership cannot invoke the right of emergency representation by spouses, even in an emergency. A power of attorney is therefore mandatory if the non-married partner shall be put in the position to take action. 

• The right of emergency representation also does not apply if a power of attorney already exists, legal guardianship (“Betreuung”) has been established, or the spouses have separated. In addition, representation by the spouse must not have been explicitly objected to (see below under ‘Spousal objection’).

2. When does the right of emergency representation by spouses not apply?

As the name suggests, an emergency representation for spouses is limited to emergency situations. It is not intended to enable a long-term representation of a spouse and is limited to a period of six months. 

The restriction to health issues also implies that an emergency representation for spouses cannot be invoked for representation in real estate matters. Actions of the spouse in the business sphere of the spouse will not be covered by the right of emergency representation. The same applies to banking transactions. In this case, invoking the right of emergency representation would only be conceivable if the act of representation is directly related to the health emergency (e.g. the payment of medical bills). In all other cases and outside the six-month period, guardianship proceedings would have to be initiated. 

Therefore, if you want to ensure that your spouse or another person from your family or circle of friends can act as your representative without any time limit or restriction on health issues, it is still essential to establish a general power of attorney and a health care proxy.

3. What implies a spousal objection (“Ehegattenwiderspruch”)?

A spousal objection is a formal declaration that can be used to object to the legal right of representation by the spouse. It is a right to object which is used in particular in situations of separation or during ongoing divorce proceedings. A spousal objection is intended to ensure that in such cases there is no unwanted representation by the ex-partner.

There is no prescribed form of such objection. Nevertheless, it is advisable to record the objection in writing, keep it in a safe place and make it known at least to the spouse (whose representation is being objected to) and the attending physician. If you want to ensure that the spousal objection is actually taken into account in an emergency, you should go one step further and have it deposited with the Central Register of Lasting Powers of Attorney (“Zentrales Vorsorgeregister” – ZVR) of the German Federal Chamber of Notaries (“Bundesnotarkammer”). The ZVR offers a central platform where powers of attorney, guardianship orders and similar documents can be registered.

However, no copy of the actual objection is stored at the ZVR. Only certain basic information is available. By storing the information at the Register, a treating physician can thus take note of the fact that an objection exists and that legal emergency representation should not apply in this case if the patient is unresponsive. 

Useful links (in German): 

Information on the right of emergency representation by spouses from the Federal Ministry of Justice: https://www.bmj.de/DE/themen/vorsorge_betreuungsrecht/ehegattennotvertretung/ehegattennotvertretung_node.html

Information on spousal objection at the Central Register of Lasting Powers of Attorney: https://www.vorsorgeregister.de/hilfe/vorsorgeangelegenheiten/ehegattenwiderspruch