What will happen if you are no longer able to make independent decisions in the future as a result of a serious illness, accident or dementia? With an advance care directive, you remain self-determined even in these circumstances and determine who should represent you in the event of lack of capacity of judgement.
An accident or the consequences of a serious illness will turn your life upside down. Who will take care of your affairs if you become incapacitated? In an advance care directive, you specify precisely who decides and does what in your interests, so that you can remain as self-determined as possible even if fate deals a cruel blow.
According to a population survey conducted by Pro Senectute Switzerland, 20% of those surveyed have an advance care directive. This was up from 12% in 2017. (Results of the 2021 Advance Care Survey by gfs-zürich)
What is an advance care directive?
With an advance care directive, you determine which natural or legal person(s) can make decisions for you and represent your interests in the event of your lack of capacity of judgement. This includes the areas of personal care, asset management and representation in legal matters.
- Personal care: This includes all personal aspects of everyday life, such as support and representation in everyday matters, health care (medical examinations), the hiring of care staff, dissolution of your household, hospital stays or even admission to a home.
- Asset management: This includes all aspects relating to assets, such as the checking and payment of invoices, tax matters, management of bank assets and real estate, disposal of bank assets, increasing or reducing mortgages or the purchase and sale of properties.
- Representation in legal matters: This includes all legal acts.
Tip
You can appoint one person for all areas or a different representative for each individual area. It is advisable to appoint substitutes in case the defined person is no longer able to execute the mandate.
Why does an advance care directive make sense?
- With an advance care directive, you remain self-determined even if you become incapacitated.
- An advance care directive is particularly important for couples living in a common-law partnership , as it enables you to guarantee your partner comprehensive rights of representation, which are not currently available under the law.
- An advance care directive also makes sense for spouses, as the statutory right of representation does not cover all actions. It may be necessary to take actions for which the adult protection authority must be consulted for approval.
What do I need to keep in mind with an advance care directive?
It is important that you appoint someone you trust and who is willing to represent your interests. Discuss with the selected representative what is important to you and where you keep your important documents.
Directives and requests are possible within the scope of the individual areas. These include, for example, appointing an accredited doctor, selecting caregivers, prohibiting the sale of certain assets or requesting a specific investment strategy to be followed.
An advance care directive does not replace any (bank) powers of attorney until it comes into force. In addition, an advance care directive may not contain any testamentary dispositions. You should also not include any “emergency decrees” for medical decisions. We recommend issuing a separate advance healthcare directive for this purpose.
How can I draw up an advance care directive?
You can handwrite the advance care directive yourself. It is important that you date and sign it. It is also possible to have the advance care directive drawn up and certified by a notary.
Revocation and amendments
As long as you are capable of judgement, you can revoke or amend an existing advance care directive at any time. If you revoke the advance care directive, you should destroy the document and/or mention in the new directive that previous directives are no longer valid. Changes and additions can be made by hand (including the notarised version) or by way of public notarisation. In the case of handwritten changes, they must be clearly marked, dated and signed.
When does an advance healthcare directive take effect?
The advance care directive only takes effect if the individual becomes incapacitated and the adult protection authority (KESB) officially ascertains this and validates the advance care directive.
The KESB checks whether the advance care directive is legally correct and complete. It then determines whether the mandated person is suitable for executing the advance care directive and issues a certificate to this effect if applicable.
What happens if I become incapable of judgement without an advance care directive?
Spouses and registered partners
If one of the partners becomes incapacitated, the other partner receives a statutory right of representation for everyday activities. This right of representation is restricted and applies to the following areas:
- legal acts intended to cover normal maintenance requirements
- usual management of income and assets
- if necessary, the power to open and deal with post
Decisions in the area of extraordinary asset management, such as the purchase or sale of real estate, new investments of securities or representation in matters of inheritance are not included. The KESB must be consulted for this.
Single persons or persons living in a common-law partnership
In the case of single persons or persons living in a common-law partnership, the KESB reviews the necessary measures and arranges guardianships depending on the situation. The authority determines whether a person in close contact can take over the right of representation. If not, official guardianship is ordered.
Where should an advance care directive be kept?
The advance care directive should be kept in a safe and easily accessible place. It is also advisable to give a copy to the mandated person(s) and/or relatives and to inform them of the location of the original document.
Depending on the canton, the advance care directive can be filed with an official office. The establishment of the advance care directive and its place of deposit can be registered via the Civil Registry Office of the municipality of residence.
Questions?
Our experts would be happy to advise you.
Advance healthcare directive
In addition to an advance care directive, you should also draw up an advance healthcare directive. With an advance healthcare directive, you determine among other things which medical measures may be taken and which may not in the event of lack of capacity of judgement.
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