You need to know that in Switzerland we have an organisation called the Child and Adult Protection Agency (KESB) looking after the interests of anyone who is temporarily incapacitated, so should you or your loved one be unable to make decisions for themselves then the KESB will step in. To prevent this it is important to have 3 documents ready.
Advance care directive (Vorsorgeauftrag):
* Preserve self-determination, avoid intervention by the authorities
Accidents or illnesses can render any of us incapacitated for any length of time: i.e. no longer legally capable of making decisions. For persons residing in Switzerland, the children and adult protection authority (KESB) assesses if incapacity exists. In the event of loss of capacity of judgment, the affected person will be appointed a legal representative, who will make decisions on his/her behalf. If you wish to remain autonomous, you must establish an advance care directive (ACD) which is handwritten or notarised and nominate a person who will, in case of incapacity, act on your behalf. By doing so, you spare yourself and your family control by the authorities.
The ACD goes into effect if and only if you are no longer capable of making decisions. The KESB then appoints the person(s) nominated in the ACD to act on your behalf (= appointee). You can instruct this representative with your personal care as well as your financial affairs. Without an ACD the state will take on this function. Any person of sound mind can be nominated as an appointee. Preferably, this person should be informed in advance.
For married couples, the mentally healthy spouse has a statutory right of representation. In contrast to the appointee, his/her rights of representation are limited to legal acts for general needs and proper asset management. In order to avoid the requirement for the KESB to approve extraordinary administrative duties, the spouse also requires an ACD.
The ACD must be handwritten, dated and signed and its contents must at least name the appointee and his/her obligations. If not handwritten, the ACD needs to be notarised. The ACD can be revised or revoked at any time. Let your family members know where the ACD is kept (create a folder with important documents).
An ACD distinguishes itself from a patient decree or living will in which a person of sound mind issues, in simple written form, which medical treatment he/she refuses.
For the protection of your family, we recommend establishing four documents/agreements: a matrimonial contract or cohabitation agreement, a will or inheritance contract, an ACD and a patient decree. Finally, you should issue a power of attorney for your bank accounts, although it does not replace an ACD and in case of death, will no longer be recognised by the bank. *
Patient Decree – Living Will – Patientenverfügung
This document is to explain to the doctors taking care of you what should happen to you should you not be able to make decisions for yourself anymore. This also takes the load off your loved ones to make these decisions. If you create your own then you should write it by hand, date and sign it.
We also have two documents (in German) to download which you can fill out.
Full version:
Short version:
Will – Testament
Although in Switzerland the rule is that should one partner die the other one inherits as soon as you have children things become more complicated. Your child will inherit a minimum of 25% of your estate and unless otherwise stated in the will, the KESB could step in to represent the children’s best interests. This would mean for example that should you have some property together with your partner, your child will automatically inherit a part of it, leading to the KESB stepping in as your child’s representative to approve your next mortgage deal or they would weigh in on your decision to sell the property for example. So it is very important to state in your will who you would like to be your child’s guardian in the case of your death.
There are two types of wills considered valid in Switzerland.
The handwritten will. You must write the will by hand from beginning to end, date and sign it. You need to put your full name down and write clearly who you would like to represent your child.
The notarised will. You and a notary will formulate your will together and have it certified by them.
It is very important to let your family know where your documents are kept, and in no case should you keep your will in your bank safe (as the bank will only open the safe for the heir).
It is better to be prepared then to be caught out.
* This part of the article was written by Heidi Pfister-Ineichen partner at Studhalter & Meier Rechtsanwälte AG. www.stu-law.ch
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