Power of attorney and legal guardianship.

As at: June 2026

The answer first. If a valid precautionary power of attorney is in place, a trusted person can act without detour — including in the questions around the house. If it is missing, the guardianship court appoints a legal guardian: the slowest of all paths. Two misconceptions cost families the most time here: the belief that spouses may act for each other anyway, and the belief that a signed form is enough. For property, neither is true.

Since 2023 there has been a statutory emergency right of representation for spouses (§ 1358 BGB). It is narrowly limited: it applies for six months at most and exclusively to health matters — such as consenting to a treatment. It does not apply to the bank account, to contracts, and certainly not to the property. Spouses cannot automatically represent each other in selling or encumbering the house; a long marriage changes nothing about that. Whoever wants the partner or a child to be able to act in an emergency needs a power of attorney for it.

A power of attorney from the stationery shop fails at the land register. That is not an exaggeration but land-register law: whoever wants to sell or encumber a plot of land for another person must present the power of attorney in publicly certified or notarially recorded form (§ 29 GBO). A privately written form — even a carefully completed one — does not satisfy the land registry. For many families this is the most expensive discovery in an emergency: a power of attorney exists, everyone has made provision, and still nothing moves on the house. Which form is needed in the individual case is clarified by the notary’s office.

If a valid power of attorney is missing, the path leads through the guardianship court. The procedure is thorough, and for precisely that reason it is slow: the court obtains a medical expert opinion, hears the person concerned, and then appoints a guardian — often a family member, sometimes a professional guardian. From the initial suggestion to the appointment, weeks pass, sometimes months, depending on the court.

With the house, a second stage is added: if the guardian wants to sell or encumber the property, every single disposition needs the court’s approval (§ 1850 BGB). For this, the court regularly requires a market-value appraisal and examines whether the transaction serves the well-being of the person under guardianship; with service of the decision and the appeal period, further weeks to months often pass from the notarial recording. This is no reproach to the courts — it is protection. But it is the slowest path, and it can be avoided entirely with a timely power of attorney in the proper form.

The usual areas are health, place of residence and assets — the last is especially decisive when the property comes to be discussed later. How far the power of attorney reaches, whether it is internally tied to conditions, and what form is required is arranged by the notary’s office; guardianship associations and the guardianship authority also help with the preparation. We do not give legal advice — we make sure this step is not overlooked and that the documents can be found when it matters.

A power of attorney only helps if it is found in an emergency. For this there is the Central Register of Precautionary Powers of the Federal Chamber of Notaries (ZVR): it records that a power of attorney exists and who is authorised. The guardianship courts consult the register before they set up a guardianship — so in the best case, a registered power of attorney prevents the entire procedure. Millions of powers of attorney are already entered there; many more lie untraceable in drawers and have no effect at the decisive moment. On request, the notary’s office takes care of the registration.

Banks do not always recognise precautionary powers of attorney smoothly and often work with their own forms. It has therefore proved sound to set up an account or bank authority directly with the bank in addition to the precautionary power of attorney — together, during one’s lifetime, in person. Without it, even paying the nursing home’s bill can stall while everything else is being arranged. Whether a power of attorney should remain valid beyond death is something you discuss at the notary’s office and with the bank.

The living will (advance healthcare directive) is often confused with the precautionary power of attorney, but it settles something different: it lays down which medical treatments you want or refuse when you can no longer express yourself. It authorises no one. The care directive, in turn, determines who is to become guardian should a guardianship come about after all. All three documents belong in the same conversation — they do not replace one another.

A power of attorney presupposes that you understand, and freely decide, what you are signing. That is why the calmest moment is the best one: the moment when nothing presses and no diagnosis is in the room. Whoever understands the power of attorney as part of their own good order — like a will or an insurance policy — grants it with sovereignty and according to their own ideas. As long as you can decide, you decide. The power of attorney makes sure it stays that way, whatever comes.

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This article provides orientation and does not replace legal advice. The power of attorney and its form are arranged by the notary’s office, a guardianship association or the guardianship authority.