Private Clients
The Advance Care Directive - do I need to instruct someone to take responsibility for my personal care?
It is important to make provisions in good time so that one day you are not left to be determined by others, either by legal regulations or by the orders of an authority (KESB). Younger people in particular should consider the issue before the worst comes to the worst. As a nice side effect, you save relatives from having to make difficult decisions and make it easier for them to deal with the challenging situation. So first of all: yes, precaution is important.
Make provisions today and use the advance care directive to decide for yourself who should act on your behalf if you become incapable of judgement (e.g. in the event of dementia, serious illness or an accident). As you cannot plan in advance whether and for how long you will remain capable of judgement, you should consider your wishes at an early stage.
You can appoint a suitable person in an advance care directive. It is advisable to appoint a replacement person in the event that the selected person is unwilling or unable to fulfil the mandate. The appointed person can cancel the contract at any time with two months' notice. It does not always make sense to appoint your own children, as the reversal of roles can lead to conflicts, which is why an independent person may make better decisions for you.
You can regulate the following areas in the advance care directive:
- Personal care: Everything related to the person, e.g. housing, opening the post, representation in medical matters
- Property care: Receiving payments, paying bills, dealing with banks
- Representation in legal matters: Representation in dealings with authorities, courts and private individuals
- Compensation of the authorised person
Why handwritten?
The law stipulates that the advance care directive is only valid if it is written, dated and signed by hand from start to finish.
A printed text, on the other hand, is only valid if it is publicly notarised by a notary, which usually costs around CHF 500 to CHF 1000. Consequently, writing by hand is the cheapest option.
What happens if there is no advance care directive?
In a marriage or registered partnership, your partner has the right of representation for everyday actions even without a power of attorney. The partners must live in the same household or be able to provide regular and personal assistance. Authorisation from the KESB is required for unusual legal acts (e.g. sale of property).
If you are a single person, it is at the discretion of the KESB whether an external guardianship is organised or the next of kin is given responsibility. The person closest to you is not always chosen.
Who is the principal and when is an advance care directive valid?
When drawing up the advance care directive, the principal must be of legal age and capable of judgement. They must not be under comprehensive guardianship.
The advance care directive only comes into effect if the person concerned is categorised as incapable of judgement. The KESB checks whether an advance care directive has been drawn up and whether an original document is available. The document is valid if the formalities are complied with and the person's capacity of judgement is recognised at the time it is drawn up. In addition, the KESB checks the representative for their capacity of judgement and whether they are able to carry out their duties.
If the power of attorney does not exist and is not effective, the KESB makes the decisions for the person concerned.
Can the advance care directive be changed retrospectively and how is the remuneration of the authorised person to be regulated?
You can amend or revoke the power of attorney at any time. The appointed person can terminate the power of attorney by giving two months' notice to the KESB.
If the advance care directive does not contain any instructions regarding the remuneration of the appointed person, the KESB shall determine an appropriate remuneration if this appears justified in view of the scope of the tasks or if the services of the appointed person are usually remunerated.
