Advance care directive in Switzerland

An advance directive is a directive that takes effect when a person loses their capacity to make decisions. This can happen, for example, due to illness or accident. You can prepare for this eventuality and use an advance directive to specify who should take care of your important affairs. The person you designate can assume personal care responsibilities, manage your assets, or handle your legal affairs. They will make decisions on your behalf, taking into account your wishes, which you have set out in the advance directive.

Who is an advance directive useful for?

It is particularly worthwhile for older people to create an advance directive. Due to their advanced age, they may no longer be mentally or physically fit and lose their capacity to make decisions. In this case, relatives or other trusted persons should be appointed as support staff who can take on important everyday tasks.

But it can also be beneficial for younger people to create an advance directive. Because an accident or sudden illness can cause even previously healthy people to lose their capacity for a certain period of time or permanently. If no advance directive has been created, the Child and Adult Protection Authority (KESB) usually decides on the next steps. In this case, it is also possible for a third party to assume guardianship and represent the incapacitated person.

Excursus: The Child and Adult Protection Authority

The KESB is a judicial or administrative authority. It is regulated at the cantonal level, which is why the procedure may vary slightly depending on where you live. Generally, this authority looks after the rights and protection of persons who are unable to do so themselves. These may be minors or persons with a physical or mental disability. If a person becomes incapacitated, the authority ensures that their wishes are implemented as far as possible. In any case, the KESB can only act within the framework of the legal provisions. If there is no legal basis for a matter, the authority may not take action.

The legal basis for advance directives can be found in the Swiss Civil Code (ZGB) under the heading “Adult Protection” starting with Article 360 ​​of the ZGB. According to the law, any person with legal capacity can issue an advance directive. It takes effect when the person issuing the directive becomes incapable of judgment.

For an advance directive to be valid, it must either be handwritten or notarized. In the first case, this means the document must be handwritten and dated and signed.

The document can be kept by the applicant in a safe place at home. However, keep in mind that the advance directive must be easily retrievable in case of doubt. It may therefore be advisable to keep it together with other important documents or to inform relatives of its existence. Alternatively, you can have your advance directive safely stored at your civil registry office for a fee. This fee is usually less than CHF 100.

Content of the Advance Directive

In an advance directive, you, as the author, specify who should assume which tasks if you are no longer able to do so for certain reasons. This creates clear conditions in the event that you become incapable of making decisions. This ensures that certain matters are handled according to your wishes and preferences, not against your will. The following points should be recorded in an advance directive:

• Who will be the guardian? You can appoint one or more people to represent you in the event of your incapacity.
• What tasks will the guardian assume? These tasks can relate to personal care, financial management, or legal matters. The tasks assumed and the manner in which they will be performed should be described as precisely as possible in the advance directive.
• Substitute instructions: In the event that the designated person does not want to assume the task or later resigns, you can name substitutes.

What happens if the designated person wants to deviate from the directive or if something isn’t regulated?

In principle, the designated person is obligated to fulfill the advance care directive and the resulting duties exactly as they are written down. If duties aren’t regulated therein but become necessary, the designated person should discuss this with the responsible KESB (Child Protection Agency). Even if the designated person believes that a particular matter isn’t in the best interests of the incapacitated person, they can contact the KESB (Article 365, Paragraph 2 of the Swiss Civil Code).

In principle, any natural or legal person can take on an advance directive if designated by the person concerned. The KESB examines whether the person is suitable for the task and able to fulfill it satisfactorily. Furthermore, it must be ensured that the person actually wants to accept the mandate – each person is free to refuse an advance directive. It is also possible to appoint several people in the advance directive. These people will then assume different areas of responsibility: For example, your partner can take care of asset management, while your daughter handles the legal matters. Specialists, such as lawyers specializing in inheritance law, can also be appointed for this purpose.

In most cases, the appointed persons are trusted individuals. Often, relatives or long-time friends are entrusted with this task. Ideally, a deep relationship of trust exists between you and the appointed persons. After all, you should be able to rely on them to act in your best interests and have your best interests at heart.

Must an advance care directive be accepted?

If you are appointed as a guardian by an advance care directive, you are free to refuse. In this case, either a substitute directive will take effect or the KESB will arrange for suitable representation. Furthermore, the appointed person can terminate the mandate at any time, even after acceptance. This must be done in writing and with two months’ notice to the KESB. In urgent cases, termination without notice is also possible (Article 367 of the Swiss Civil Code).

Compensation for the appointed person

Depending on the situation, the appointed person may be entitled to compensation. If nothing is stipulated in the advance care directive, the KESB will decide. Whether and how the appointed person is compensated generally depends on the nature of the tasks assigned. For activities that are usually performed for remuneration, the appointed person is generally awarded an expense allowance. These expenses are borne by the client (Article 366 of the Swiss Civil Code).

If you change your mind, you can change or revoke an advance directive at any time. This must be done in one of the forms permitted for its creation, i.e., either in your own handwriting or by public notarization. For example, you can mark the existing document with the notation “revoked.” Destruction of the document by the person issuing the directive is also permissible and automatically revokes the advance directive (Article 362 of the Swiss Civil Code).

If a second advance directive is created, it can serve either as a supplement to or as a replacement for the first one. In any case, try to ensure the situation is as clear as possible. It’s best to also inform the responsible civil registry office and the parties involved.

What happens if the person who placed the order regains capacity?

If a person who lacks capacity and for whom a power of attorney was created regains capacity, the power of attorney automatically lapses. This is the case, for example, if a person recovers from an illness or wakes up from a coma. The KESB generally decides whether capacity exists or not.

In principle, the KESB is responsible for looking after the well-being of persons who are no longer able to do so. If an advance directive exists, the decisions are usually clear and the procedure simple. The authority then simply checks whether the document meets the formal requirements and whether the appointed persons are suitable and willing to assume the assigned tasks.

If no advance directive exists, the spouse or registered partner is entitled to representation according to Article 374 of the Swiss Civil Code. However, there are limits to this representation: They may open the mail of the incapacitated person and access their finances – but only to secure their livelihood. Any matters beyond this must be discussed with the KESB. If there are no suitable spouses or life partners, the KESB can also appoint relatives. The prerequisite is that they are close to the incapacitated person and can perform the duties with the necessary diligence. If no close relatives are available, the authority can appoint an external assistant.

Ultimately, the KESB is committed to the well-being of the incapacitated person. This is always the focus, and the wishes of the affected person should be implemented as far as possible. By creating an advance directive, you make the KESB’s work easier and provide clear information about your wishes. This way, you can be represented in the best possible way if you are no longer able to do so yourself.