The complications that arise when obtaining a power of attorney.
My mother died a few days ago. She was a person who could not stop herself from bumping into history: she was a refugee from Nazi Germany at the age of 19; she found a place to live in British colonial Africa, and stayed there for forty years until civil war made continuation impossible; she decided to return to Germany with my father (also a German refugee), where the German authorities eventually cared for her most tenderly and gracefully in her old age; and then her funeral provided the final historical indignity, since her life story had to be translated into Russian as there were no more German Jews in her city.
I have had various dealings with German legal officialdom over these last months, nearly all satisfactory. (I mention this as a contrast to the experience of a fellow columnist following the death of his father in the UK.)
At one point, I had to obtain a power of attorney over her affairs. I was told very pointedly that my mother was the client, and that they had to visit her in her care home to make sure that she was of sound mind. Since I was not in the country, I listened in over the telephone line as the notary visited.
To test whether she could understand, the notary asked: ‘Did you have a happy childhood?’ ‘Oh yes,’ said my mother, ‘I was very happy in the early years. Then the terrible time came.’ The notary did not ask about the terrible time, and skipped to her years in Africa. My mother was always very happy to tell whichever Germans she met – usually born long after the war – about what she had experienced. Once a young doctor naively asked why she had left Germany for so long. ‘Because otherwise I would have gone up in smoke.’
After she had given a good account of herself, the notary was convinced that she could properly request a power of attorney. He did not like it that she was giving it to someone who did not live in Germany, and did not speak proper German. But she insisted that that is what she wanted. He started to ask about her financial resources, since that was the basis of his regulated fee tariff – the richer you are, the more you pay.
She started to give wild figures, since, although she was of sound mind, she had for some time not had the energy to deal with her financial affairs, and did not know how much she possessed. I began to shout down the phone line, and eventually managed to explain that I would give the figures. As he was leaving the room, and maybe undoing all her good work, she asked me gleefully over the phone: ‘Did I say all the right things?’
The notary returned a week or so later for her signature, which fortunately she could still give. I also listened in on that occasion. He proceeded to read the dense six-page document aloud to her for around 15 minutes, to make sure that she understood it. At that stage, she could not sit up for long, and I cannot believe that she could focus on such impossible legalese.
That is the one part of the procedure which I found absurd, since a 94-year-old who is in the position of having to give someone else a power of attorney over her affairs is unlikely to be able to take in the kind of document on which a lawyer half her age would have to focus hard. Testing whether she was of sound mind – yes, I agree; assuming she was able to understand the sophisticated content of a legal document – no, that is silly. But I was softened when I eventually received the notary’s bill.
He had never asked me about her resources, and he charged less than €400 (£297) for the whole business.
A 94-year-old is unlikely to be able to take in the kind of document on which a lawyer half her age would have to focus hard.
After her death, I took the joint-homemade will, which she had made with my father decades before, to the notary. The will had been approved on his death, and I took the certificated copy with me. I could not go back to the same notary who had given the power of attorney – no, he was in notariat 2. For succession, and with a surname beginning with G, I had to go to notariat 3, which is where the original notary who had dealt with my father’s succession was based.
All the notariats appear to be on the same floor of the same building, but their work is allocated in accordance with field of law and surname of client. Weird! And what about competition and the freedom of the client to choose his or her own notary? No, notariat 3 is the one I must use. The clerk there was most efficient, and took down all the details, saying they would contact me in due course. So far, so good.
Consequently, the melancholy story of the impact of history on my parents’ lives continues to its end. In addition to the loss caused by my mother’s death, I am sorry to have lost my last German connection, not only because it is who I am, but also because we always have a lot to learn about how others do things.
Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs