The number of people with dementia is increasing. Temporarily in a coma due to an accident. No longer able to will. The importance of the living will or a notarised power of attorney, both for affairs in the Netherlands and abroad (within Europe).
Following the 2010 World Alzheimer Report, the ANP reported that the number of people with dementia in the Netherlands will double to one million within four decades. This huge increase in the number of people with dementia is largely due to the ageing population. Also, accidents can be in a small corner.
This will put you (temporarily) in a coma. Therefore, be ahead of the risk and make sure you are at least in control.
This may involve financial matters but also things like care and nursing. For example, if the property you own needs to be sold, this cannot be done just like that.
Your signature is required for this. Bank accounts are also blocked in some cases.
If your partner wishes to take out a mortgage while you are co-owner of the relevant collateral, this is not going to work out. Suppose you are an heir in an estate but cannot sign for it yourself. The estate cannot then be settled. There are countless more such sometimes harrowing examples to mention.
Incidentally, many married people think that if they can no longer sign themselves, their spouse is legally authorised to sign, but nothing could be further from the truth. Whether you are married, living together or single, in all cases the power to sign does not simply pass to someone else. That is where a judge has to come in. Through a so-called 'guardianship' or 'receivership'. Do you have a house abroad? Well, then that could be a laborious process.
Administration
In the case of receivership, a cantonal judge gives permission for financial affairs of a person under receivership to be managed by another person, the administrator.
One burden on the administrator is that he has to account annually to the subdistrict court for the management he has carried out during the year in question.
This is because the administrator has to submit annual records to the cantonal judge, accounting for all expenses.
Permission must also be sought from the subdistrict court for expenses over €1,500.00.
Subrogation
A guardianship order goes one step further. Here, the person placed under guardianship loses his legal capacity.
This means that the person cannot perform legal acts without the consent of his trustee.
A guardianship order is usually applied for when a person is completely unable to manage their own affairs, both financially and medically.
One reason for this could be that if the person placed under guardianship without this option incurs excessive and irresponsible expenses or risks third parties taking advantage of the situation.
A guardianship order must also be applied to the court and, again, annual records must be submitted to the subdistrict court.
Both the application for a guardianship order or a guardianship order or accounting to the cantonal judge are perceived by many as onerous.
The living will
NEW is the so-called "life will". This is a special notarial deed in which you can record what your living will should look like. In it, you can arrange matters that are important to you now and that you will no longer be able to arrange later, for example in case of dementia.
You can think about making donations, which nursing home do you want to go to? Who may manage the banking affairs? To whom may the house and valuables be sold? And many more practical matters you can arrange in a living will. Also for your interests abroad.
In other words, this living will is also legally valid in France!
Notarised power of attorney
These objections do not apply to a notarised power of attorney. First of all, you decide by whom you will be represented. So you appoint someone in whom you have full confidence. A protection measure via the courts, on the other hand, will usually be requested by your family. If you are mentally incapable of thinking about your representation, you have no say in it.
You also decide which actions the power of attorney covers. For example, only financial matters or also medical matters. In a protection order, the law designates the areas in which you will be represented and the judge gives further details.
You decide whether the power of attorney takes effect immediately, or only when you are no longer able to look after your interests yourself.
Your trustee does not have to answer to the cantonal court. Having a notarised power of attorney drawn up can be arranged with a notary. Applying for a protection measure through the court is seen as confrontational, as a judge will have to assess whether the measure is rightly applied for.
I do add the following important note about the notarised power of attorney: you do need to fully trust the proxy, because it can be abused!
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