Contingency planning with proxies in Italy

In Italy, as a general rule, a person capable of acting might grant a general proxy for contingency planning in particular when he foresees to be no longer able to look after for himself, because his mental or physical capacities have been affected.

The proxy works during the life of the principal also in case his capacities are no longer existing, but only if the principal is living. The principal may in any case revoke the proxy when he considers it appropriate. The use of the proxy is important in case the principal knows that he has a degenerative disease that will lead him to not take care of his affairs.

If the principal is suddenly incapacitated, the judicial authority could appoint a support administrator without the need for proxy (further details provided under paragraph No.7 below).

Proxies can be used in many areas and, as general rule, the principal can nominate someone, through a general proxy, that represent himself for all matters, such as legal, administrative, management or personal matters except the exercise of strictly personal rights (e.g. marriage).

According to the Italian law, a person capable of acting who is at least 18 years of age and has capacity of judgement may grant a general proxy or a special proxy. The first one concerns all matters related to the principal whilst the second one is related to a specific affair or matter (as a litigation).

As a general rule, there are no formal requirements for proxies.. However, if a specific formality is required for the affair to be executed with the proxy, the proxy has to be done with the same formalities.

For example, to sell or buy a property, the proxy must be in the written form (scrittura privata autentica or atto pubblico).

The proxy expires upon the death of the principal or upon the death of the nominated person.

The heir of the dead principal may re-nominate the same person who was in charge through the proxy granted by the principal during his life. 

In Italy, a living will is a legally binding statement of choices made by persons who fear they may not be mentally capable in future, make advance decisions on future diagnostic assessments, therapeutic or medical treatments which may be applicable / available to them.

In this sense, the person interested (the principal) might appoint a representative (so called “health proxy”). The nominated person will represent the principal in his future relationship with doctors and with medical choices (not patrimony) in accordance with the content of the living will.

The actions authorized by the nominated person may differ from the living will only in certain and specific case – ascertained with the doctor - in which there are specific obstructing circumstances to realize the living will.

The health proxy is not mandatory in the living will and it can be grant jointly with the living will or later with a separate document. In both cases the health proxy needs to be accepted by the nominated person.

The living will and the health proxy must be in the written form and certified by an Italian lawyer or by an Italian notary (“scrittura privata autenticata or atto pubblico”) and insert in the Italian Living Wills databank (“Banca Dati delle DAT”) of the Ministry for Health (“Ministero della Salute”).

The principal in any time could change or revoke the living will and his representative.

As general rule, there is not a central register for proxies and therefore, it is advisable to keep a folder with the collected proxies for any exigency.

However, there some cases in which specific kind of proxies are centrally registered.

As commented under 5. above, one of the case is for living wills.

Due to possible interaction with other Italian law provisions, in case for a proxy to be granted it is advisable to carefully evaluate in advance the relevant legal frameworks.

In Italy there are some cases in which a legal representation / proxy is mandatory by the law. In particular, these regimes can be classified as follows:

• cases in which a person is considered not capable by law to autonomously act in his own interest (regardless of the fact that the person may or not be fully capable of acting). This is the case, for example, for person under 18 years old; and

• cases in which a person affected by mental or physical incapacity is unable, even partially or temporarily, to provide for his own interest due to different causes and/or circumstances.