Advance care directive

Who will represent my interests?

What if you are no longer responsive after an accident? Or what will happen if you cannot take care of yourself anymore because of illness? Then another person has to take care of your business and make important decisions. You can designate this person using an advance care directive.

Loss of mental capacity

A person is mentally capable by law if they have the ability to act rationally. An illness or accident can lead to a person no longer having mental capacity. Then they can no longer take care of their personal or financial matters. This can be temporary or permanent.

A person who has lost mental capacity needs someone to take care of their interests and assist them. The law requires a spouse or registered partner to do this. They can take care of everyday matters. However, they are not allowed to do things such as purchasing or selling real estate. To do so, they have to involve the Child and Adult Protection Authorities (KESB).

The KESB assumes these duties for single people or appoints an advocate.

However, you can appoint your own representative in advance. That is the purpose of the “advance care directive.” One person can be appointed, or several people can be selected for various matters.

Requirements for advance care directives

The following applies to advance care directives:

There are two kinds of advance care directives. 1. You can write your advance care directive by hand, sign it, and date it. 2. You can prepare the directive with the help of a notary and have the notary authenticate it.

• You must provide an exact description of which duties you are transferring to the person. The duties can be one or more of the duties that your advocate would normally perform.
• You should also determine payment for the person whom you are assigning. Otherwise, the KESB will determine an appropriate payment.
• You can amend or revoke your advance care directive at any time,

and there are information sheets and templates on the internet for advance care directives.

Storage

You can store your advance care directive yourself. However, you should ensure that it can be found if needed.

You can also notify the civil registry of where it is stored. This ensures that your advance care directive can be quickly and easily found in an emergency. This normally costs less than CHF 100.

Your advance care directive can also be deposited at a government agency in certain cantons. Depending on the canton, this may be the KESB, the family court, or the authorized notary.

You can also deposit your advance care directive at our office. It is free of charge for our clients.

Loss of mental capacity

The responsible Child and Adult Protection Authorities will confirm whether a person has lost mental capacity. They will verify whether there is an advance care directive. If an advance care directive exists, they will examine it and make clarifications:

• Is it valid? Were the formal requirements complied with, and did the author have mental capacity when it was drafted?
• Is the assigned person suitable to be an advocate? Does the person have mental capacity? Is the person able to perform the task?

The KESB will decide about any payment if payment arrangements were not made in the advance care directive.

Once these clarifications are made, the appointed person decides whether they would like to accept the advance care directive. If yes, the person receives the certificate of representation from the KESB. Then the job of the KESB is almost complete. It will only intervene if your interests are at risk.

Power of attorney

A power of attorney has effects that are similar to an advance care directive. However, a power of attorney normally applies when it is granted. Today, it is no longer possible to make arrangements for representation using a power of attorney in the event of loss of mental capacity. Banks in particular are now often unwilling to accept powers of attorney if the person granting the power of attorney has lost mental capacity.