Advance care directive: shape the future the way you want

Life is often unpredictable. An accident, illness or old age can suddenly impair someone’s capacity to make independent decisions. Without clear provisions, adult protection legislation kicks in, but with no guarantee that your personal wishes will be considered. An advance care directive can help you avoid this uncertainty if you decide in good time who will act on your behalf. After all, no-one knows your needs better than you.

What is an advance care directive?

An advance care directive is a legal document you can use to appoint a person or institution to represent your interests in the event you are no longer capable of judgement. This document enables you to decide in advance who will represent your interests in the event you are no longer capable of judgement. The advance care directive should not be confused with the patient decree, which focuses exclusively on medical aspects.

Who should draw up an advance care directive?

This sort of directive is a good idea for everyone, regardless of age or circumstances. Single and unmarried individuals in particular benefit from an advance care directive given that, without clear provisions in place, the child and adult protection authority (CAPA) will step in. The CAPA responds to reports from relatives, doctors or neighbours who suspect someone is no longer capable of judgement or that they are no longer in a position to take care of their own affairs.

Single people

If you do not have an advance care directive in place, the CAPA will take responsibility in the event you are no longer capable of judgement. The CAPA will then check whether a suitable person in your close circle can be appointed as guardian. If they are unable to find anyone, an official guardianship will be established.

Unmarried couples

In Switzerland, unmarried partners do not have automatic representation rights. If an emergency arises, the partners may not be allowed to make any decisions about medical treatments, finances or other affairs. An advance care directive enables unmarried couples to assign each other comprehensive representation rights.

Married couples

Even spouses and registered partners are able to act on behalf of each other only to a limited degree if there is no advance care directive. Legal representation rights cover only everyday decisions, such as management of income or payment of bills. For more substantial matters, such as selling real estate, taking out new loans or making asset management decisions, the approval of the CAPA is required.

What needs to be in an advance care directive?

For the advance care directive to fulfil its purpose, it needs to provide clear answers to the following crucial questions:

The three areas of representation

An important part of the document is appointing which person may make decisions for you and in which areas. The three main areas are as follows:

• Personal care: provisions on personal care and support. For example: whether someone is staying in the flat or moving into a care home, how home care is organized, the choice of trusted physician or arrangements for everyday affairs, such as buying groceries.
• Control of assets: arrangements on financial matters This includes managing bank accounts, paying bills and making decisions on renting out, buying or selling real estate. An advance care directive ensures bank transactions, tax returns and accounts are dealt with by someone deemed trustworthy by the person who has issued the directive in the event they are no longer capable of judgement.
• Legal representation: representation in legal matters, such as signing contracts with care homes or service providers, correspondence with authorities or sorting out inheritance matters.

Detailed instructions and wishes

Specific instructions can help your proxy to represent your interests as best as possible and avoid misunderstandings. Example instructions include the choice of care home, asset management limitations or specific day-to-day wishes, such as safeguarding personal mementos.

Appointing representatives

The mandate must nominate the person(s) to assume responsibility in the event you are no longer capable of judgement. Proxies or legal entities, such as a bank or trust company, may also be appointed. Open dialogue will ensure whoever is selected is ready and able to take on the responsibility.

How do you draw up an advance care directive?

The directive must be drawn up in a legally compliant manner. There are two options:

• Draw it up yourself: the document must be fully handwritten, signed and dated.
• Notarization: a publicly notarized directive provides more security. This is a sensible option if complex provisions or legal entities are incorporated as representatives.

Regardless of the form, the drafter of the directive must be capable of judgement at the time of compiling.

How much does an advance care directive cost?

The costs may vary depending on the form chosen and personal circumstances.

• Drawing it up yourself is the most affordable method, as no direct fees are incurred.
• If you have a notary draw up and notarize your directive, you will be liable for fees of between 300 and 1,000 francs, depending on the canton and scope.
• If you wish to file and register your advance care directive with the registry office, this will cost about 75 francs.
• You can compensate your representative financially for taking on this responsibility. You can decide how much the compensation should be yourself. If the compensation amount is not specified in the advance care directive, the CAPA can stipulate an appropriate amount.

Storage and deposit

To ensure your advance care directive is available quickly and reliably in an emergency, the original document should be stored in a secure but easily accessible place, such as

• with a trusted person,
• in a lockable safe
• or at the registry office in your municipality of residence as the official deposit location.

What if there is no advance care directive?

Without a personal proxy agreement, adult protection legislation kicks in. The CAPA will check whether your chosen proxy is a suitable representative of your interests. If not, an official custodian is appointed who may not be aware of your wishes.

For spouses and registered partners

Statutory representation rights cover only day-to-day tasks such as the payment of bills. More substantive decisions, such as selling real estate, require the approval of the CAPA.

For single people

The CAPA will check whether someone in your close circle can take on this responsibility. If nobody is suitable, an official custodian will be appointed, but they may not always be familiar with the your personal wishes.

Adaptation and revocation

An advance care directive can be adapted to new circumstances or revoked at any time, provided that clear legal requirements are observed.

Amendments

Handwritten additions must be dated and signed. Notarized advance care directives also require notarization in the event of modifications. Substantive modifications, such as a change of representative, should be governed by a new advance care directive.

Revocation

The directive is revoked by destroying the document or formally in writing. For notarized documents, we recommend going through a notary to revoke the directive. Without a new advance care directive, adult protection legislation kicks in.

Entry into force and application

An advance care directive comes into force only in the event the person in question is no longer capable of judgement and the CAPA has checked certain requirements.

Validation by the CAPA

The CAPA will confirms the validity of the document, the incapacity to judge and the suitability of the representative. Once everything has been checked successfully, a proxy arrangement is issued.

The representative’s tasks and obligations

The representative safeguards the interests of the person in question and takes on responsibility for personal care, asset management and legal representation.

Termination of the advance care directive

Official representations ends once the person regains the capacity to judge or upon their death. Without a representative, the CAPA takes on responsibility.

Summary

An advance care directive is more than a legal document – it protects your interests and strengthens your self-determination. You can use it to decide in good time who will act on your behalf, and so avoid any uncertainties. Young or old, single or partnered − drawing up this document is a serious decision that should be taken at the right time.