Making a guardianship provision: thinking ahead for your children
If both parents of a minor child die, or the parent with sole custody dies, CAPA will choose a guardian. By drafting a guardianship provision, parents can make their wishes known for the worst-case scenario.
Each year, approximately 2,000 children in Switzerland lose a parent.1 From 2009 to 2018, an average of 37 minor children per year became full orphans.2 The same situation applies if the parents are absent and cannot be located or cannot exercise their custody rights, such as for health reasons.
Many new parents begin to think about their responsibilities. For instance, what would happen to the children if both parents die?
Child and adult protective services (CAPA) appoints a legal representative
For children whose parents are deceased or no longer able to exercise their parental custody, Child and adult protective services (CAPA) in Switzerland decides who will be granted custody.
If only one parent dies, custody usually remains with the surviving parent. This is automatically the case for parents who are married, as well as those who are legally separated or divorced with joint custody. However, if the deceased parent had sole custody, CAPA will look for a suitable guardian. When evaluating the options, it will also consider the previously non-custodial parent as a potential guardian.
However, the well-being of the child is always the primary focus. For instance, keeping siblings together takes priority. This is why CAPA is committed to finding a guardian who has the child's/children's interests at heart and can care for them properly.
Making a guardianship provision: what parents can do to prepare
Some parents prefer not to leave the search solely up to the CAPA and put their wishes in writing – similar to an advance directive. They can do so by making a guardianship provision.
From a legal standpoint, a guardianship provision constitutes a wish. CAPA is not required by law to award guardianship to the person stipulated by the parent. Therefore, the term "provision" may be misleading, as the parents do not have the final say on appointment.
CAPA will take the parents' wishes into account only if this is in the child's best interest. In some cases, the parents' guardianship provisions can also state that a particular person should not be awarded guardianship. For instance, a parent with sole custody may need to ensure that the other parent cannot serve as administrator of the child's property.
Who should draft guardianship provisions and who might be a suitable guardian?
All parents should state their wishes by drafting guardianship provisions, but this is particularly important for parents with sole custody of their children.
When choosing a guardian, close family members, such as siblings or godparents, are often good candidates. In blended families, a parent's new partner could serve as guardian too. It is also possible to assign legal representation and guardianship to more than one person.
How to draft guardianship provisions in compliance with the law
Guardianship provisions are merely a suggestion to CAPA. There are no legal requirements to follow when expressing your wishes.
Contrary to what you may have read online, the document with the provisions for guardianship does NOT have to be handwritten but a will does. It will suffice to type up and print out a statement including the date and the parents' signatures. The document must list all children and the desired guardian. It is advisable to appoint a substitute if the first choice cannot serve as guardian. Explaining why the person you have chosen is a suitable guardian will certainly help CAPA understand the background when conducting its review. An explanation should also be given if you feel that a particular person should not be the guardian.
Making guardianship provisions in a single document
When making guardianship provisions, always use a separate document for this purpose. Making it part of your will or an inheritance contract may be problematic when the will is read, resulting in delays.
There are no requirements for document storage either; it is not necessary, for example, to have it on file with a notary. However, it is a good idea to provide a copy at least to the person you have appointed.
Arranging for your final wishes is a very personal, individual matter. By preparing documents such as a will, advance directive and living will during your lifetime, you are stating your wishes for the future and possibly preventing family disputes. Parents of minor children should also make guardianship provisions in addition to these documents.
Do you have any questions about making guardianship provisions?Schedule a consultation This link target opens in a new window
1 "Orphaned children by age upon death of mother or father, 1998-2018 " Swiss Federal Statistical Office (SFSO).
2 Number of orphan's pensions (double), Swiss Federal Statistical Office, STAT-TAB database – interactive tables (SFSO), 2009-2018.