With a healthcare proxy, someone who wants to anticipate their legal incapacity can entrust a person of their choice with the power to take important actions or decisions on their behalf. Doing so brings a lot of peace of mind and practical benefits, but unfortunately also some drawbacks. What exactly is a healthcare proxy? How should the agreement be drafted and what are the pitfalls? Discover the answer to all these questions in this article.
"}},{"componentType":"sectionTitle","title":"What is a healthcare proxy?"},{"componentType":"paragraph","richBody":{"value":"A healthcare proxy is an agreement between a principal and a trusted person (trustee) who, thanks to the power of attorney, is given the authority to make decisions on behalf of the principal when they are no longer able to do so themselves. After all, a severe illness or serious accident may result in your no longer being able to make personal, financial or medical choices yourself. In such cases, a healthcare proxy allows you to grant power of attorney to one or more trusted persons to make those decisions on your behalf.
Who exactly that trusted person is, is entirely up to the trustee to decide. In most cases, a partner or child is chosen, but this is not a requirement. The date when the power of attorney takes effect is also chosen by the person to be protected. This can be a specific date or condition, or can be delayed until the principal is deemed legally incapable. While this flexibility is one of the main advantages of the healthcare proxy, it also entails a disadvantage that we will explain in more detail later in this article. Important to note, however, is that the healthcare proxy will only be valid if the principal was still legally competent at the time the agreement was drafted. If not, it will still be a justice of the peace who appoints an administrator in case of incapacity, as is already the case without a healthcare proxy.
The agreement can be drafted very liberally or very restrictively. For authority relating to the assets of the person to be protected, a distinction is made between:
Acts of management: limited to managing your assets. Think, for example, of renting out a flat, paying bills, making investments, and so on. This general authority is often self-explanatory and need not be described in detail in the healthcare proxy, although you can do so if you wish.
Acts of disposition: extended to acts with actual impact on one's assets, such as selling a property, paying debts, or making donations. This power can only be given when the healthcare proxy is drawn up with a notary.
In addition, the principal can also add matters relating to their person to the healthcare proxy. For example, you can guarantee that the trustee ensures that you receive all necessary care in case of illness or an accident, or that you can enter a retirement home or care institution that meets your (financial) wishes.
"}},{"componentType":"sectionTitle","title":"Tailor-made accounts and services for lawyers?"},{"componentType":"paragraph","richBody":{"value":"
Discover ING Privalis' specialised offer for all your specific banking needs.
"}},{"componentType":"sectionTitle","title":"Drawing up a health care proxy with a notary: here’s how it works"},{"componentType":"paragraph","richBody":{"value":"To make sure that a care proxy is legally valid and contains all the necessary details, or to add acts of disposition as well, it is advisable to draw up the agreement together with a notary. Below we give an overview of the different steps and their cost.
1) Determining the scope of the healthcare proxy
It is important to draw up the agreement in as much detail as possible: does the agreement concern only the management of your assets or also their disposition, do you want certain care aspects, what are the powers and possible compensation of the trustees, and at what date does the proxy take effect?
Since 1 January 2023, a fixed fee of 195 euros (or 295 euros in the case of two principals) applies for drawing up a healthcare proxy.
2) Signing by principal and trustee(s)
The healthcare proxy must be signed by all parties involved. Once the agreement is final, you will also have to pay a registration fee of 50 euros.
3) Registration in the Central Register of Mandates
Finally, the notary will register the healthcare proxy in the Central Register of Mandates (CRL). This is an essential last step, because without registration, the healthcare proxy will no longer be valid as soon as the principal becomes incapacitated, which undermines the whole initial purpose of the agreement. The cost of this registration is 24 euros and can be paid via the notary's third-party account.
On top of this cost, there is also the writ fee (a federal tax on deeds) of 50 euros and any additional administration and notary fees.
"}},{"componentType":"sectionTitle","title":"What are the drawbacks of a healthcare proxy?"},{"componentType":"paragraph","richBody":{"value":"
Besides its many advantages, a healthcare proxy unfortunately also comes with some disadvantages. As it is established without any supervision by the court, the person to be protected can sometimes be abused. In addition, family feuds often arise over who is assigned which powers, for example when only one child is designated as a trustee. Although a private healthcare proxy (without the intervention of a notary) is possible, it is therefore advisable to rely on the expertise and impartiality of a notary.
The possibility of deferring activation of the mandate may also give rise to disputes. For example, the healthcare proxy does not take effect until the principal is no longer capable of making decisions independently, but it’s not always easy to objectively determine the boundary between a person who is capable and a person who is incapable.
Moreover, the healthcare proxy does not prevent legally incapacitated persons from still making certain decisions or performing certain actions themselves. Despite the power of attorney that the trustees receive to manage such matters, as a protected person, you remain free to dispose of your assets. Therefore, in certain cases, a care proxy will not be able to provide the necessary protection and the intervention of a judge will be inevitable.
"}},{"componentType":"sectionTitle","title":"Expert advice for experts"},{"componentType":"paragraph","richBody":{"value":"Benefit from ING Privalis' 20 years of experience and know-how.
"}}]},"hasMacro":false,"id":"6f71308a-e81a-4369-9f2c-158a04b2efe5","localeString":"en-GB","mainHeaderZone":{"backLink":{"textLink":{"text":"All sectors' expertise","url":"/en/business/my-sector"}},"componentType":"editorialHeader","coreHeader":{"body":"A healthcare proxy is a mutual agreement that allows you to let a trustee make personal and financial choices on your behalf when you are no longer able to make responsible decisions yourself.","title":"Drawing up a healthcare proxy: everything you need to know"},"date":"2024-04-15","readingTime":3},"publishDate":"2024-04-15T10:45:26.556+02:00"}}