Deposit your advance directive to have your affairs in order
Who will represent you if you lose your mental capacity? Prepare an advance directive that outlines your wishes in good time. Comparis explains what you need to be aware of when it comes to advance directives in Switzerland.
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1. Definition: what is an advance directive?
According to the Swiss Civil Code, an advance directive is regulated under adult protection law in Articles 360 et seq. and concerns an order that enables each person to plan and ensure their own care in the event of mental incapacity.
Advance directives: the basics
If you lack mental capacity due to an illness or accident, you can no longer make many decisions for yourself. With an advance directive, you appoint one or more persons to represent you. So-called acts of representation can affect how your personal care, assets and legal transactions are handled.
With an advance directive, you define your personal wishes and interests, and who will take care of your affairs and decisions. It can be comprehensive or limited to specific areas only. The advance directive ceases to be in effect with the restoration of mental capacity or in the event of death.
A living will, which can also be called an advance healthcare directive, is specifically concerned with medical arrangements. An advance directive in the wider sense as used in Switzerland, on the other hand, covers administrative tasks, physical well-being in general and the management of financial assets. Both the advance directive and the living will are part of the personal planning file, which you can set up in Switzerland.
The following applies to power of attorney and advance directives: when created, the principal must be capable of making judgements (link not available in English). The power of attorney enters into force as soon as the corresponding document is created and validated. Some service providers, such as banks, only accept the power of attorney as long as the person has mental capacity.
An advance directive, on the other hand, only comes into force when the person loses their mental capacity. It must be validated by the KESB/APEA.
A state of mental incapacity can also be temporary, for example due to a psychological disorder. Article 16 of the Swiss Civil Code defines mental capacity as the ability to act reasonably.
2. Why do I need an advance directive?
Having an advance directive will prevent the Child and Adult Protection Authority (KESB/APEA) having to take costly and time-consuming action on your behalf. It initiates investigations if it learns of a possible case of mental incapacity and, if necessary, declares the person concerned to be mentally incapacitated.
You also make sure that decisions are made in your interest.
3. Who needs an advance directive?
It is not only older people who lose their mental capacity. Advance directives are useful for everyone. You simply can’t know whether and for how long you will remain capable of making judgements and decisions yourself.
An accident, a disease such as dementia or a psychological disorder can suddenly change your mental condition. That’s why it’s never too soon to think carefully about your wishes and preferences, and to deposit a document outlining them.
Married and unmarried couples can secure detailed representation rights with an advance directive. If you are single, appoint a person you trust in the advance directive and obtain their consent in advance.
4. What is written in an advance directive?
As a rule, the advance directive covers three areas.
Personal care is a document that contains instructions relating to the person’s physical, mental and emotional well-being. Its content is similar to that of a living will or advance healthcare directive. That’s why, where possible, you should appoint the same person to ensure your decisions are implemented.
Important: personal care can only be entrusted to a natural person.
This section defines the tasks and responsibilities relating to financial affairs. This includes things like paying invoices and managing assets. Specifically, you can determine what you want your assets to be used for.
Important: you can assign care of assets to private individuals, banks or other legal entities.
The person you appoint acts as your representative when dealing with banks, public authorities, business partners and your family. In other words, it’s about everyday legal matters. Special procedures, such as selling your home, are not included under the advance directive. However, you can determine your exceptions explicitly.
Please note: the document must have a specific format. The directives must be described clearly and in detail.
Who should represent me if I lose my mental capacity?
You can appoint one person for all three areas, or appoint different representatives. When making your decision, ensure that you have full confidence in the person or persons representing you.
Tip: make sure you discuss the matter with them in advance, and clarify key issues such as how compensation should be determined. Also consider who should stand in for your representative in an emergency.
5. How do I create an advance directive?
The advance directive must be formally valid, i.e. personally created and handwritten by you. It must be dated and signed. Alternatively, you can write it in conjunction with a notary and have the document certified. You can find an example in German here.
An existing advance directive can be changed or revoked at any time.
6. Where can I deposit an advance directive?
Store the advance directive in a safe place and let your representatives know where it is being held. For extra security, you can also notify the civil register office of its location for a fee of 75 francs, and make an entry in the civil registry.
Alternatively, you can deposit the original with organizations such as Caritas, Pro Senectute, and the KESB/APEA for a one-time fee. You can also ask a notary to have certified copies made and give them to your representatives.
7. When does an advance directive come into effect?
An advance directive is only considered to have come into effect after it has been validated by the KESB/APEA. Only then can the person named in it take over representation. The following steps are required.
A doctor must officially confirm the person’s mental incapacity or inability to act.
The KESB/APEA will check whether an advance directive has been drawn up and an original document is available.
If formal requirements have been met and the person’s mental capacity at the time the directive was established is recognized, the document will come into effect.
The KESB/APEA arranges a meeting with the involved parties.
It verifies the mental capacity of the chosen representative, checks whether they are up to the task, and explains the high level of responsibility involved. The KESB/APEA may reject the person named in the advance directive. It is therefore advisable to appoint a second representative.
If the validation is successful, a certificate is handed over to the appointed representative. Now the advance directive is legally valid and the representative is able to act.
However, the representative may refuse the advance directive, or terminate it by giving three months’ notice to the KESB/APEA.
The cost of validation varies greatly. In Solothurn it is free of charge, while in Liestal the guideline value is 1,200 francs. Various KESB/APEA agencies do not publish any guideline values for their fees.
The person appointed as a representative in the advance directive must be able to account for its management at all times. However, regular reporting to KESB/APEA is not required. The authority will only intervene if it receives a report.
8. What happens if there is no advance directive?
In a marriage, your partner receives the right to represent you in everyday activities, i.e. choosing or paying for the electricity bill or health insurance premiums, even without an advance directive. Anything that goes beyond simple everyday life, for example complex financial transactions or property management, is not automatically transferred to your spouse. For this, they also need an advance directive. In the case of exceptional legal transactions (such as the sale of property), they will need authorization from the KESB/APEA. There is no automatic right of representation for cohabiting partners.
If you are single, it is the responsibility of the KESB/APEA to organize a relative or an external person for external guardianship.
Sources (some links not available in English):
This article was first published on 15.05.2019