Living Will: Legal Situation and Content

A living will is a personal declaration of intent that takes effect when the person who wrote it is no longer able to freely express their wishes due to illness or accident. This right to self-determination through a written directive is enshrined in Article 370 of the Swiss Civil Code (ZGB). A living will can record a person’s wishes regarding the refusal or termination of treatment or life-sustaining measures, as long as they still have capacity.

Living wills primarily contain treatment instructions that are generally binding on the treating physicians. However, they can also be used to designate a representative who can make decisions about your medical treatment on your behalf.

The primary purpose of an advance directive is to allow you to express your wishes regarding life-sustaining measures and treatment issues. These wishes should be formulated as clearly as possible to avoid misunderstandings during interpretation.

The content of an advance directive is usually divided into two parts: The first part specifies whether life-sustaining or life-prolonging measures are desired, or whether the patient fundamentally rejects them. The second part then lists the individual measures that the patient wishes to reject or accept.

The following measures can be specified in an advance directive:

• Reduction or complete discontinuation of ongoing treatment
• Transfer to an intensive care unit
• Connection to a ventilator
• Surgical procedures
• Measures for artificial life support

Appointing a Representative

According to Article 370, paragraph 2 of the Swiss Civil Code (ZGB), it is possible to designate a representative in a living will who can make decisions regarding your medical treatment on your behalf in the event of your incapacity. While you are still capable of making decisions, discuss your wishes in detail with your representative so that they can make appropriate decisions in your best interests. Also, remember to appoint a substitute for your representative to ensure you are covered in all eventualities.

Family Members with the Right of Representation

According to Articles 374 and 378 of the Swiss Civil Code (ZGB), there is a specific group of persons who are legally authorized to represent a patient in the event of incapacity. This list indicates which close relatives of the patient have the right to make decisions in succession.

• The person designated in writing in the advance directive
• A guardian with medical representation authority
• The spouse or registered partner living with the patient in the same household
• A person living with the patient in the same household and providing regular support
• The patient’s descendants, if they are close to the patient and provide regular support
• The patient’s parents, if they are close to the patient or provide regular support
• The patient’s siblings, if they are close to the patient or provide regular support

Tip: As a general rule, you should never name anyone as your representative in your advance directive without informing the person concerned. Such a decision has far-reaching consequences, and it is important that the person assuming this responsibility is prepared for it.

The Declaration of Values

A living will can also include a declaration of values, in which you set out your treatment wishes for all conceivable medical situations. This declaration serves as a guideline for the treating physicians in case of doubt. The declaration of values ​​in the living will is not mandatory.

If you would like to include a declaration of values ​​in your living will, it should include the following points:

• Your personal values ​​and beliefs
• Your personal background and formative experiences
• Your ideas about quality of life
• Your attitude towards illness-related care and the need for care

A living will is binding, meaning that the treating physicians are obligated to respect the patient’s wishes expressed in the advance directive. If no advance directive exists and no relatives are present, the treating physician decides which therapeutic measures they deem appropriate for the patient (Article 377 of the Swiss Civil Code).

However, if an advance directive exists, both the physicians and the relatives are obligated to accept it and follow the instructions contained therein. There are exceptions, however. If the provisions of the advance directive violate the law, or if there is suspicion that the directive was drawn up under duress or in ignorance, the physician may decide not to respect the advance directive (Article 372 of the Swiss Civil Code). In this case, however, they must inform the patient’s representative or, if there is no representative, the patient’s family.

It is advisable to consult a lawyer specializing in inheritance law when drafting an advance directive. Ultimately, the content of your advance directive depends on both your individual health status and your personal values. Healthy people generally place little importance on the precise wording of their advance directive and opt for a general directive.

For people with health problems or who are at risk of imminent illness, however, the wording of an advance directive focuses primarily on the treatment of the current illness. In these cases, an advance directive offers the opportunity to adapt wishes to existing treatments and possible improvements or worsening of the illness.

It is also possible to draft a short advance directive by simply naming a trusted person. You make the decision regarding resuscitation and life-sustaining measures yourself in the advance directive. All other decisions are made by the trusted person. However, if you would like to draw up a detailed advance directive, it is advisable to seek help to discuss the medical measures and their consequences in detail and to obtain support with this often psychologically stressful topic.

Any person of sound mind can prepare an advance directive, regardless of whether they are an adult or a minor. The advance directive must be in writing, whether handwritten or typed (Article 371, Paragraph 1 of the Swiss Civil Code). However, the wording of the advance directive must be clear and unambiguous to avoid errors or doubts in interpretation.

Don’t just write down your wishes in the advance directive, but also discuss them with a trusted person who will represent you. Here, too, the certainty that someone understands your illness-related decisions is an additional guarantee that your decisions will be respected.

You can prepare an advance directive yourself and do not need to have it notarized. However, due to the complexity of the subject and the risk of ambiguous wording, we recommend seeking professional assistance when drafting it.

Tip: Attorneys specializing in inheritance law can provide you with expert advice on drafting an advance directive. It is also advisable to involve your spouse or partner in the process of drafting your advance directive.

Where should I keep my living will?

Swiss law does not have any binding regulations regarding the storage of living wills. In principle, living wills can be kept at home. However, they can also be deposited with a lawyer or notary, your family doctor, or a trusted person. In any case, the living will should be quickly and easily retrievable.

You can also enter on your insurance card that you have drawn up a living will (Article 371, Paragraph 2 of the Swiss Civil Code). This allows doctors to check whether you have a living will in an emergency.

When are living wills valid?

For a living will to be valid, the following requirements must be met:

• The person concerned is capable of making decisions at the time the advance directive is drawn up.
• The advance directive must reflect the personal and actual wishes of the person concerned and must not have been drawn up under duress.
• The instructions must comply with legal requirements.

According to Article 371, Paragraph 3 of the Swiss Civil Code (ZGB), you can change your advance directive at any time. For example, your attitude toward a particular treatment may have changed. As a general rule, it is recommended to review your advance directive every two years to ensure it is up to date. Any changes made must be documented in writing, dated, and signed by you. You can also revoke your advance directive in whole or in part at any time.