An accident, a sudden illness or progressive dementia. Nobody likes to think about no longer being able to make their own decisions at some point. Many people also assume that their wife or husband, children or close relatives can automatically make all important decisions in such a case.
However, the reality is different: Without a clear regulation, the child and adult protection authority (KESB) intervenes and determines who can take on which tasks. The legal right of representation of spouses remains in place. However, it only covers everyday matters such as actions to cover maintenance requirements or the ordinary administration of income and assets. For more far-reaching decisions, the KESB must give its consent or set up a guardianship, which takes time and can restrict self-determination.
Legal basis of the advance care directive
The precautionary mandate is included in the Articles 360 to 369 of the Swiss Civil Code (CC) regulated. Any person of legal capacity, i.e. capable of judgement and of legal age, can draw up an advance care directive. This instrument makes it possible to determine in advance who will assume responsibility in the event of their own incapacity of judgement. In addition, the appointed person must fulfil their duties in accordance with the provisions of the Swiss Code of Obligations after accepting the advance care directive and inform the adult protection authority in the event of conflicts of interest. In accordance with Art. 366 of the Swiss Civil Code, the appointed person is also entitled to compensation for their work and can terminate the power of attorney at any time subject to the prescribed notice period.
The three areas of the pension order
An advance care directive can cover the following three areas. These areas can be regulated individually or in combination and can also be assigned to different persons.
Personal care
Personal care encompasses a person's physical and mental well-being as well as their emotional well-being. In other words, all personal matters of daily life that go beyond purely medical decisions. This includes, for example, the choice of place of residence (at home, assisted living or nursing home), but also the coordination of medical appointments, the organisation of care and support or the promotion of social contacts and leisure activities fall within this area. Personal care must be transferred to a natural person.
Property custody
Asset management refers to all financial matters that arise in everyday life or need to be organised in the long term. This includes the management of bank accounts and securities, the extension of mortgages, the handling of tax matters or the management of a business. Property care can be transferred to a natural or legal person (bank, trustee, etc.).
Representation in legal transactions
The third area of the power of attorney relates to representation in legal transactions. This means that the authorised person can act in a legally binding manner on behalf of the principal and make decisions. This area includes, for example, the conclusion and cancellation of contracts, representation in dealings with authorities, insurance companies and other institutions, as well as the exercise of rights and obligations in everyday life. Representation in legal transactions can be delegated to either a natural person or a legal entity, just like asset management.
Consent to the sale of property or companies must be explicitly mentioned in the power of attorney. Otherwise, none of the aforementioned areas include such transactions.
When should an advance care directive be drawn up?
Many people associate advance directives mainly with old age. However, it can actually become relevant at any stage of life. An accident, a sudden illness or a mental health crisis can also affect young and healthy people unexpectedly.
Practical example I
Mr M. is 68 years old, married, has two children and owns a detached house. He suffers a severe stroke and from one day to the next is no longer capable of judgement, i.e. no longer able to make his own decisions. He never drew up an advance care directive. His wife P. is now authorised to pay her husband's incoming bills as part of her legal power of representation and may continue to use her husband's debit card to buy groceries. However, she cannot and may not decide on the extension of the mortgage or the sale of the house.
The role of the KESB if there is no advance care directive
If there is no advance care directive and a person becomes incapable of judgement, the KESB decides who should be appointed as a guardian and what tasks this person should take on.
In the case of Mr M., the KESB must take action. As a first step, the authority checks whether a close relative, i.e. the wife or children, is suitable as a guardian. For this purpose, a formal procedure is initiated, documents are obtained and discussions are held with the family before the comprehensive guardianship is granted. Several weeks pass before the formal appointment is made, during which time financial decisions have to be postponed.
Practical example II
Mrs S., 45 years old, married, gardener with her own business and mother of a 12-year-old daughter, becomes incapable of judgement after an accident. She had already drawn up an advance care directive after the birth of her daughter: In it, she entrusted her husband with personal and property care and appointed her sister, who is also a gardener, to represent her in business matters.
The role of the KESB if an advance care directive is in place
After the person becomes incapable of judgement, the advance care directive must be submitted to the locally responsible KESB for validation. During the validation process, it is checked whether the person in need of protection has become permanently incapable of judgement, whether the incapacity has been medically certified and whether the advance care directive has been validly drawn up. In a discussion with the representatives appointed in the advance care directive, the KESB investigates whether they are suitable for the intended tasks and whether they are willing to take on these tasks. Once the validation process has been successfully completed, the persons authorised to act as guardians can identify themselves to third parties by means of a certificate.
How to draw up an advance care directive
In Switzerland, an advance care directive can be drawn up in two ways: handwritten or publicly notarised. In the handwritten form, the entire document must be written by hand from start to finish, dated and signed. Alternatively, the advance care directive can be drawn up jointly with a notary and notarised publicly. The advance care directive should then be deposited, reported to the civil registry office and a copy given to the future authorised representatives.
It is important to have personal discussions with the people involved and let them know what is particularly important or where the required documents can be found.
The welfare of your pets can also be bindingly regulated in the advance care directive.
The advance care directive is a key instrument for ensuring self-determination in every phase of life. It ensures that in the event of an incapacity of judgement, it is clearly regulated who takes care of personal, financial and legal matters. Without an advance care directive, the KESB determines who will fulfil these tasks, with all the delays and uncertainties that such a procedure can entail. Early action ensures that your own wishes are recorded in a binding manner and that relatives remain able to act in the event of an emergency. The creation of an advance care directive should always be tailored to your personal, family and financial situation.
The important decisions are not made at some point, but in good time
We will be happy to provide you with comprehensive and professional advice, take care of the legally compliant preparation of your advance care directive and have it notarised by a notary on our premises. This will ensure that your personal values, goals and decisions are respected even in difficult times.