Protection in old age
Creating an advance care directive: take steps in good time
Who should represent you in personal, financial and legal matters if you are no longer able to do so yourself? Create clarity with an advance care directive.
Content:
Content:
- With an advance care directive, you nominate another person to represent you and manage your assets if you lose your decision-making capacity.
- The advance care directive regulates personal care, management of financial affairs and representation in legal affairs.
- The correct form must be used when drawing up an advance care directive.
- To the conclusion
Admittedly, it’s not pleasant to imagine that at some point you may no longer be able to make your own decisions. And yet it could happen to anyone, be it due to a serious illness, dementia or a sudden household or traffic accident. With an advance care directive, you can determine who will represent you in the event you lose decision-making capacity. That’s why it’s so important to deal with this topic in good time. Without an advance care directive, the law on partner representation may apply or the KESB (Child and Adult Protection Authority) may set up a guardianship and appoint a guardian. The guardian represents the person who has lost decision-making capacity, overseen by the KESB.
In the event that you lose decision-making capacity, an advance directive determines who will represent you in personal, financial or legal matters. An advance directive provides legal certainty that a third party (guardian) will be entrusted with the representation of your interests.
It’s true that married couples and registered partners who live in the same household can also make decisions on your behalf. However, this only applies to those decisions that are necessary for basic living expenses. That’s why it’s still worth drawing up an advance care directive. For cohabiting couples, an advance care directive is particularly important because the law does not provide for the right of partner representation.
Advance care directive and living will – what’s the difference?
When it comes to the goal of autonomy, a living will is of great importance in addition to an advance care directive. Both are ways to regulate your affairs, and they complement each other perfectly. The advance care directive is broadly defined and includes the regulation of personal care, financial matters and legal representation. The living will relates exclusively to medical decisions and wishes regarding treatment.
When does the advance care directive take effect?
If you are incapable of making decisions, the advance care directive will be declared effective by the Child and Adult Protection Authority (KESB). The KESB confirms the incapacity with medical reports and also checks whether the advance directive has been drawn up in a valid form. In addition, it assesses the suitability of the appointed representative and their willingness to carry out the task.
The area of care comprises two aspects: personal care and management of financial affairs. Both areas of responsibility also include representation in legal affairs. It is possible to authorize one person for both areas or to appoint a different representative in each case. Write your advance care directive as precisely and in as much detail as possible so your wishes can be implemented.
You should prepare the choice of representative well and carefully and also comply with the formal requirements of an advance care directive. The following points are key.
The right timing
As a person with the capacity to act, who is resident in Switzerland, you can draw up an advance care directive at any time. Drawing up an advance care directive makes sense at any age – even as a young person – especially since you can change or cancel it at any time.
The right person to represent you
Think carefully about who you entrust with the task of acting on your behalf in an emergency. Trust and familiarity can be just as decisive as a healthy amount of pragmatism and distance. If a person is at risk of a conflict of interest, it’s better to choose someone else.
Remember to designate substitute representatives in the event that your trusted person cannot or does not want to take on the task. The relationship between several care proxies must be clearly regulated. For example, if your children are to decide on your wellbeing, it’s advisable to determine whether they should decide together, or which child has the last word in the event of disagreements.
Be sure to discuss your plans with the people concerned in advance and clarify any open questions. In principle, you are completely free in your choice. The prerequisite is that the person is of legal age and capable of making decisions both at the time the advance care directive is drawn up and at the time of its entry into force.
Formal requirements
Strict formal requirements apply to the advance care directive. You can choose between a handwritten and a publicly notarized advance directive.
- Handwritten advance care directive
In this case, the advance care directive is written entirely by hand and must be dated and signed. You can make handwritten changes at any time, but these must also be clearly marked, dated and signed to be valid.
If you decide on a handwritten advance care directive, you can use a sample as a guide to think of everything important. If you own residential property or have certain ideas about asset management, appropriate wording should be included in the directive.
- Publicly notarized advance care directive
If the advance care directive is particularly extensive or you are no longer able to write it by hand, you can choose for it to be publicly notarized. This requires you to engage a public official of the canton, such as a notary.
The notary verifies the correctness of the advance care directive and confirms that you were capable of making decisions at the time it was drawn up. Any change to the notarized advance care directive must also be publicly notarized.
Once you’ve drawn up an advance care directive, whether handwritten or publicly notarized, inform your next of kin or trusted persons about its existence and content. Store it in a place that is safe and accessible to relatives at the same time. It’s also helpful to report the place where it has been deposited to the civil registry office. This registration ensures that the Child and Adult Protection Authority (KESB) is informed of it in the event of your incapacity to make decisions.
It’s also possible to deposit the advance care directive directly with the KESB in some cantons. This makes sense because the KESB must also declare the advance care directive valid and put it into force in the event you lose decision-making capacity.
Important: the Child and Adult Protection Authority only recognizes the original advance care directive. Copies are considered proof, but are not legally valid.
Even if it may seem unimaginable at the moment, you don’t have to grow old to become seriously ill. In the worst case, you may unexpectedly no longer be able to make decisions for yourself. Loss of decision-making capacity could affect anyone. The consequences for your life partner, family and relatives, but also for business associates and friends, are often serious. An advance directive makes it possible to arrange important things in advance in your interest. A reassuring thought.
Disclaimer
Disclaimer
