Ask a lawyer on the topic of Other questions to lawyers

withdrawal of care

August 13, 2015 | 80,00 EUR | answered by Jan Wilking

Hello. I found a brown envelope when I was looking for his phone because it was ringing. In the envelope, there were advance directives and powers of attorney issued in my name, my roommate.

What can I do? My roommate and best friend suffered a stroke on July 16, 2015. I immediately recognized it and called the paramedics. He has been in the hospital on the stroke unit since July 16 and had surgery on his head and is in a coma. I visited him for 5 minutes daily in the hospital for 4 weeks. Suddenly on Saturday, August 8, I was not allowed to visit him anymore. A professional guardian issued a ban without explanation, as told to me by a nurse.

I found a large envelope with my name on it among my roommate's things (we share a flat in a 3-room apartment). He wants me to take care of him and his affairs if something happens, and even left me his ATM card pin because he wants me to handle his financial matters. Three weeks ago, I sent a copy of the powers of attorney issued to me to the court/guardianship office, but have not received a response yet. The professional guardian was appointed by the hospital, but I only found the powers of attorney later. What should I do now? Can I have the professional guardian removed?

The professional guardian also sent me a letter by post today on August 13, 2015, in which she asked me to prepare his belongings for collection by August 20, especially requesting the immediate return of his phone, ID card, and health insurance card (health insurance card is in the hospital as I gave it to the doctors when he had the stroke). In response to her letter, I sent a text message to the professional guardian today stating that I will not return my roommate's belongings and will involve a lawyer.

What should I do now, how should I proceed? I want to take care of my roommate and be there for him. I have already taken care of my mother who suffered from COPD and passed away in 2013 for 7 years.

Thank you for your response.

Jan Wilking

Dear seeker of advice,

Thank you for your inquiry, which I would like to answer taking into account the facts you provided and your efforts as follows:

According to § 1896 para. 2 of the German Civil Code (BGB), it is legally stipulated that a power of attorney generally takes precedence over a guardianship appointment. This means specifically that self-determined assistance is to be preferred over state-appointed assistance.

According to the provision of § 1896 para. 2 BGB, the guardianship court must therefore examine whether the guardianship should be revoked in your case. If there are no doubts about the seriousness of the power of attorney or the honesty of the agent, this revocation must generally take place - at least to the extent that the areas of responsibility overlap.
Therefore, I also have doubts about the legality of the demand of the professional guardian to hand over the belongings: because as already mentioned, the will of the person under guardianship takes precedence, and this person wants you to take care of their belongings according to the power of attorney, not a stranger guardian.

I would advise you to follow up with the guardianship court once again and to emphasize the demand and deadline set by the guardian and the urgency resulting from it. If there is no positive reaction from the court or the guardian, you should indeed consult a lawyer (specializing in social law) locally to secure your rights and, above all, the rights of your cohabitant.

I hope I could assist you and remain

Yours sincerely,
Jan Wilking, Attorney-at-law