Advance Care Directive – 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) is responsible for assessing whether a state of 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 capable spouse has a statutory right of representation. In contrast to the ap- pointee, 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.
-Dr. Heidi Pfister-Ineichen, Attorney at Law and Partner at Studhalter & Pfister Rechtsanwälte AG
Originally published in Living in Luzern’s Winter Issue 11, www.livinginluzern.swiss