With the entry into force of the new adult protection law on 1 January 2013, in Switzerland, a uniform legal basis has been established for the regulation of the Advance Care Directive and the Living will. The latter, being limited to the medical field and relating to the treatment to which he/she will consent or not in case of loss of discernment.
These are, in both cases, institutions with the aim of strengthening the right to self-determination of the individual allowing the will of the latter to be respected when he/she is no longer able to decide and / or express himself/herself independently.
SPECIFICALLY: THE ADVANCE CARE DIRECTIVE
The Advance Care Directive is a contract by which any person having the exercise of civil rights can indicate the person or persons who will be able to decide in his or her place in the event of a loss of mental capacity.
THE SCOPE OF THE ADVANCE CARE DIRECTIVE
Under current law, the effectiveness of the Advance Care Directive is expressed in three different areas: personal care, financial interests and legal matters.
1) Personal Care.
This includes all acts relating to the personal interests of the Principal, from the handling of mail, including the handling of personal correspondence, to contracts with service providers, applications to insurance companies and authorities, to housing or, if a guest in a nursing home, to relations with the latter.
This also includes acts intended to support the Principal, which may also include the care of the Principal’s financial interests (point 2).
Finally, the agent entrusted with the personal care of the Principal may also be appointed by the Principal as his representative for medical measures.
2) Care of Property and Financial Interests.
This includes all acts of administration of the Principal’s income and assets.
The appointed representative therefore deals with payments but also with investments, banking transactions as well as all aspects of the management of the Principal’s assets.
In this regard, it is possible to mention the exclusion of certain acts of extraordinary administration such as the purchase and sale of real estate and the arrangement of the relevant entries in the land register.
Similarly, it is possible to exclude the authorization to dispose of the Principal’s assets free of charge except for occasional gifts, gratuities or donations for the fulfilment of a moral obligation.
3) Legal Matters
This includes the right to represent the Principal before authorities, courts and private individuals.
Legal representation therefore includes all acts of a contractual nature, which concern the business or the assets of the Principal (and thus may also fall partly within the scope of the care of the Principal’s financial interests).
This also includes the submission of tax returns and applications for supplementary benefits or pensions (old-age, disability) to the social insurance institution.
THE APPOINTED REPRESENTATIVE
In the Advance Care Directive it is possible to designate one or more representatives, assigning them precise tasks and giving them instructions for their fulfilment.
The Appointed Representatives are not obliged to accept the mandate; they may also renounce the mandate at any time by notifying the competent Adult Protection Authority and respecting the two-month cancellation period.
For this reason it is advisable for the Principal to check beforehand whether the person he/she intends to appoint will agree to take on the mandate if necessary and, in any event, to appoint possible substitutes.
By accepting the mandate, the Appointed Representatives shall represent the Principal within the limits of the mandate conferred upon him/her and shall carry out his/her duties diligently and in accordance with the general provisions on mandates.
If the Appointed Representative is called upon to perform acts or transactions not covered by the mandate, or if the interests of the Appointed Representative are in collision with those of the Principal in a particular matter, the Appointed Representative shall inform the Adult Protection Authority, which shall decide on the matter.
The Adult Protection Authority shall supervise the actions of the Appointed Representative by taking necessary measures ex officio or upon notification.
THE FORM OF THE ADVANCE CARE DIRECTIVE
The Advance Care Directive may be constituted exclusively in the form of a holographic document, which must be accompanied by the complete indication of the date (day, month and year) and the signature, or in the form of a notarial deed.
The legislation in force since 2013 provides for the possibility of contacting, at any time, the competent Authorities of the Civil Status in order to register both the constitution of the Advance Care Directive and the place where it is deposited in the central database in order to allow its easy retrieval in case of need.
THE EFFECTIVENESS OF THE ADVANCE CARE DIRECTIVE
The Advance Care Directive begins to take effect the moment in which the incapacity of discernment of the Principal is ascertained.
In this case, if it is not already in its possession, the competent Adult Protection Authority verifies at the Authority of the Civil Status the existence of a precautionary warrant.
Once in possession of the document, the Adult Protection Authority shall verify whether the Advance Care Directive has been validly constituted, whether all conditions for its effectiveness have been met, and whether the designated agent(s) are fit for the duties conferred in the Advance Care Directive.
If the Appointed Representative(s) accepts the mandate, the Adult Protection Authority shall issue a document attesting to the powers conferred upon it and through which it may legitimize itself vis-à-vis third parties.
TERMINATION OF THE ADVANCE CARE DIRECTIVE
Except in the case of the death of the Principal or the re-acquisition of the capacity of discernment, the Advance Care Directive terminates by revocation.
The Advance Care Directive may be revoked at any time by destroying it, making a holographic declaration of revocation or going to the Notary.
The revocation may also be effected by replacement with a new precautionary mandate, although revocation is not expressly mentioned.
In addition to the above-mentioned formal requirements, the revocation will be valid where the Principal is still capable of discernment.
CONCLUSIONS
Under the current legislation the Advance Care Directive is an institution designed to guarantee not only the right of self-determination of the individual who has become incapable of discernment but also his/her interests.
The formal requirements laid down by the law for the validity of the document help to prevent cases of abuse; moreover, the active supervisory role of the Adult Protection Authority in the execution of the mandate guarantees respect for the will of the individual and, more generally, his/her protection.
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