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– December 13, 2023

Is prevention better than cure? Considerations on the establishment of a precautionary order

In addition to the living will and the power of attorney, the advance care directive is one of the living wills. It designates a natural or legal person to take over personal and/or financial care, including representation in legal transactions, in the event that the author becomes incapable of judgement.

The requirements for drawing up an advance care directive
The author of the advance care directive must be capable of acting, i.e. of legal age and capable of judgement. In Switzerland, a person reaches the age of majority when they turn 18 (Art. 14 of the Swiss Civil Code).

A person is capable of judgement if they do not lack the ability to act rationally due to a mental disability, mental disorder, intoxication or similar condition. Children are also incapable of judgement. The age at which a child is no longer incapable of judgement is not defined by law and depends on the child’s development. Reasonable behaviour includes the ability to assess situations and form a will (capacity to form a will) and to act in accordance with this will (capacity to implement the will). If these abilities are lacking, a person is considered incapable of judgement.

In addition, the advance care directive must either be written, dated and signed by hand from start to finish (similar to a will) or publicly notarised by a notary.

The content of the advance care directive
If you would like to draw up an advance care directive, you should ask yourself these questions in advance: 

  • How and by whom do I want to be looked after in my personal affairs? (personal care)
  • Who will manage my assets and how? (asset management)
  • How should the authorised person be compensated?

Filing the advance care directive
Like a will, the advance care directive is of no use if the persons appointed and the competent authorities are unaware of it at the crucial time. Preventing this is basically in the hands of the author. If you want to be on the safe side, you can register the establishment of your advance care directive with the civil registry office. A register of advance care directives is kept there, in which it is recorded that an advance care directive has been drawn up, when this was done, by whom it was drawn up and where it is deposited. If the adult protection authority learns of a person’s lack of judgement, they can ask the registry office whether a corresponding advance care directive has been registered with them and thus quickly find out where it is located.

Termination of the precautionary mandate
The advance care directive can be revoked by the person making it at any time as long as it has not yet taken effect (i.e. as long as the insured event has not yet occurred). The revocation can be declared either in person or by means of a public notarisation by a notary. Alternatively, the advance care directive can be destroyed. It is important that there are no further copies or duplicates of the destroyed advance care directive so that it is clear that there is no longer an advance care directive. Even if a new advance care directive is drawn up, the previous one ends as long as it is not a clear and simple addition.

If the author regains capacity at any time after becoming incapable of judgement (for example, if she wakes up from a coma), the power of attorney ends by law. In such cases, however, it is advisable to inform the adult protection authority that the person has regained capacity of judgement so that misunderstandings can be avoided.

The advance care directive also expires if the author dies. However, it can be stipulated in the advance care directive that it extends beyond death. In such cases, the general provisions of the Code of Obligations then apply and no longer those of the Adult Protection Act.

Consequences without an advance care directive
If no advance care directive is drawn up, an adviser will be appointed if the person is incapable of judgement. This person always works on behalf of the child and adult protection authority and is obliged to take into account the presumed wishes of the assisted person.

What are the arguments against an advance care directive?
It is not advisable to set up an advance care directive if there is no trust in the person appointed, as they will ultimately make all decisions for you. It may also be that you do not want to burden relatives, friends or loved ones with work and responsibilities. If the appointed person has a conflict of interest, this also speaks against an advance care directive or at least against appointing the person as an advance care representative.

If you have any questions about the notary’s office, our notary will be happy to advise you.

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