Self-Determination Instead of External Determination: The Advance Directive

The beautiful truth: We are always getting older. But to make sure you can look forward to a relaxing third stage of life and enjoy it properly, a number of decisions with far-reaching implications must be made today. The fact of the matter is this: While everything is fine in terms of health, we tend to push tricky issues to the side. This can come back to haunt us – if we fail to make arrangements in due time, we risk losing the opportunity to choose which persons make decisions for us in the event of an emergency. Most people hope to avoid such a situation.

More self-determination

The existing guardianship legislation was replaced with new child and adult protection laws in 2013.
The big advantage: It strengthens the right of self-determination in situations in which a person can no longer express their wishes and concerns themselves. This applies to events such as a severe illness or an accident. Self-determination, rather than guardianship, is central here.

Individual conservatorships

What this means in concrete terms: The previous applicable guardianship legislation, practically unchanged since 1912, no longer corresponds with our current understanding of the right of self-determination. The authorities can now order individually-tailored conservatorships. The law distinguishes between supported, substitute, wealth management, and cooperative decision-making authorizations, as well as combined and general conservatorships. A general conservatorship is synonymous with a deprivation of legal capacity, and corresponds to guardianship under the previous law.

Appointment of a conservator

The competent child and adult protective services (CAPA) appoint a conservator to carry out the intended tasks. In many cases, this is an employee of the official conservatorship / local authorities. However, it is also possible for the conservator to be an appropriately qualified private individual or a family member. The CAPA may, but need not, take a suggested person into account. The conservator is subject to the supervision of the CAPA, requires approval for specific tasks, and must report to this authority at least every two years.

Content of an advance directive

Anyone who wants to avoid this type of conservatorship can do so with an "advance directive." In the event of the loss of decision-making capacity, this specifies who will take care of the subject and how they will do so. The person appointed to manage affairs can be a natural person or legal entity. These can include a spouse or partner, an accountant, or charitable organizations. When someone loses their capacity to make rational judgments, the appointed persons or organizations see to the personal well-being of the ill or injured person, and also assume responsibility for wealth management. The advantage: The person concerned can personally determine who will care for them and their assets, and permanent supervision by the CAPA is avoided.

Personal care

The advance directive can govern personal and/or financial care. Personal care involves ensuring care and an orderly everyday life for the subject. In particular, this includes the housing situation (e.g. the question of accommodation) and the arrangement of all necessary health measures.

Financial care

The person appointed to ensure financial care manages the entire assets of the person concerned, completes their tax declaration, and represents them in issues concerning property law. Detailed instructions for asset management can be specified in the advance directive. Whether this is a sensible choice for a given case should be determined through a personal consultation between a specialist and the client. It is strongly advised not to accept pre-printed formulations sight unseen and without being reviewed by a specialist.

Writing in one's own hand or public certification via notary

As a condition for validity, legislation requires the advance directive to be written by hand (with date and signature) or publicly notarized. This is subject to formal requirements similar to those for a testamentary disposition (testament, inheritance contract). After the advance directive has been established, it will still not exert any effect. The advance directive will only be declared effective once a "validation ruling" is granted by the competent child and adult protective services. The responsible CAPA reviews whether incapacity has occurred with the involvement of the attending physicians and implements the advance directive.
As long as a person has the capacity to exercise judgment, they can revoke their advance directive at any time: This can be carried out through either of the two forms of establishment (writing by hand or public notarization), or through physical destruction.

New legal provisions for living wills

Another part of the new adult protection law is the new statutory regulations for living wills. In the past, each canton set its own laws for how doctors and hospitals were to deal with these types of instructions from patients. These regulations varied accordingly.

Uniform across Switzerland

Today, all of Switzerland is subject to the same legal principles, under which a legally competent person with a living will can establish in advance what medical procedures and organ donations they would accept and which would be rejected. The living will can also appoint a person of trust, whom the attending physician must involve in the decision of medical questions. The physician must document and justify actions that deviate from the living will. In such cases, the relatives or, under certain circumstances, patients themselves can appeal to the responsible CAPA to review the doctor's decision.

Start early and allow enough time

It is highly recommended to budget sufficient time for the complex subjects of advance directives, living wills, and inheritance law. Ideally, you should discuss individual points and priorities with family and experts as early as possible. That way, you can ensure that your personal health and assets are in safe hands in the event of a later emergency.