1. THE ADULT PROTECTION REFORM

The new Swiss law for the protection of adults enters into force on 1 January 2013, replacing the guardianship law that has not changed significantly since the Civil Code's entry into force in 1912. Extensions of life expectancy, medical advances, the emergence of step-families, changing lifestyles and global mobility have abundantly justified a comprehensive reform in this area.

Founded on the principles of autonomy, subsidiarity of official measures and family involvement, this reform encourages each person to take appropriate measures in advance and reduces State intervention. In particular, it introduces in Switzerland the lasting power of attorney, the living will / advance directive and the health care proxy.

2. THE LASTING POWER OF ATTORNEY

The lasting power of attorney allows a person of sound mind to appoint a trustworthy person in advance who will be required to provide personal assistance, to manage his assets or to represent him in relations with third parties in case he becomes incompetent to look after his own interests. These three tasks can also be aggregated and the principal may also establish guidelines on how to perform them. Under the subsidiarity principle, such a power takes precedence over official protection measures.

This hybrid instrument - a tool to protect the adult based on contract law - is particularly useful for protecting the principal's assets when he has minor children or a step-family, runs a family business, has a risky profession, suffers from a degenerative disease (Alzheimer, Parkinson, Huntington, etc.) or is considering undergoing a risky medical procedure.

The principal typically designates as attorney-in-fact a trusted person such as his lawyer, his executor, trustee, a family office or a bank. Such a choice allows him to ensure optimal coordination with his succession plans, while he is still living.

2.1 The Attorney-in-Fact and his Tasks

The principal is free to choose an individual or legal entity. He may also designate several people for different tasks. However, he cannot delegate the appointment of the attorney- in-fact to a third party. Similarly, the abstract appointment of an individual (e.g. "President of the Geneva Court") is not valid. The principal may however provide a successive list of trusted persons, in case the first one declines or is not be able to fill the role.

The principal must specify in as much detail as possible the tasks entrusted to the appointed agent. In addition to the tasks, the principal may issue instructions on how to perform them, for example by forbidding the agent to make certain investments. The agent must perform these tasks diligently and in accordance with the rules of the mandate agreement.

2.2 Supervision by the Adult Protection Authority

The appointed attorney-in-fact is subject to supervision by the Adult Protection Authority. The authority can ex officio or at the request of the principal or of any interested third party. The agent may even ask the authority to interpret his power or supplement it in minor details.

If the principal's interests are in jeopardy, the authority may adopt measures which include ordering the establishment of an inventory or the periodic production of accounts, or withdrawing of powers. However, as the authority can only exercise occasional monitoring, the choice of the attorneyin- fact is crucial. The principal may also decide to appoint two agents with distinct roles: one performs the tasks, while the other monitors the first, akin to a protector of a trust.

The principal may revoke or modify his power at all times. In addition, he is free to provide remuneration and to determine the amount. Unless otherwise set by the principal, the authority sets appropriate remuneration for the scope of work (e.g. free services performed by a close relative, but a fee for an asset manager).

2.3 Simple and Effective Implementation

The establishment of a lasting power of attorney occurs in three distinct stages:

  • The principal expresses his will unilaterally by establishing the power, and the agreement of the attorney-infact is not required at this stage. To ensure the preservation of the document, he may request its inclusion in the Civil Registry, in which case only the place of its deposit is disclosed therein, without reference to its contents.
  • If the principal becomes incapable of managing his affairs, the authority must verify the lasting power's formal validity and examine the capacity of the attorneyin- fact. With its discretion being narrower than in the past, the authority must accept such nomination, unless it is clear that the agent is not able to fulfil the function.
  • The attorney-in-fact must inform the authority of his acceptance or refusal of office. Considering the duties and responsibility attached to his office, he should accept it if he has the skills necessary to perform the tasks and time to execute them. Finally, he may terminate the appointment by written notice to the authority within two months or with immediate effect for good cause.

2.4 Two Possible Forms

To properly execute a lasting power of attorney, the principal must be an adult, of sound mind, and not be under any general guardianship.

When the power has been entirely drafted, dated and signed by the principal in his own hand (holographic form), the authority must assume that he had capacity when preparing the document, unless there is evidence to the contrary. If the power is typed and officially drawn up before a notary public (authentic form), the latter verifies and attests to the principal's capacity; contrary to what is stipulated for a will, the presence of witnesses is not required for the authentic form.

2.5 International Conflict Matters

International jurisdiction and the applicable law in matters of adult protection are determined by the Convention of 13 January 2000 on the International Protection of Adults (art. 85 al. 2 PILA). Generally, it is the authorities in the place of residence who are competent and they apply the lex fori. The introduction of the lasting power of attorney in Swiss law should, by making their characterisation easier, facilitate the recognition by Swiss courts of foreign equivalent instruments and in particular the Anglo-American lasting, durable and springing powers of attorney.

3. THE LIVING WILL

By executing a living will or advance health care directive, anyone of sound mind may make decisions to secure his future medical care and determine, in a compelling manner, the agreed or refused medical treatment if he should become incapacitated. He may also revoke or amend such instructions at any time.

3.1 Binding Instructions

The uniform Swiss regulations on a patient's living will and its binding nature correspond to the Recommendation of the Directive of the Swiss Academy of Medical Sciences. Thus, the physician must respect the living will and may only deviate from it in three specific cases:

  • when the patient's will violates statutory provisions;
  • when serious doubts - doubts based only on concrete elements - suggest that the directives were not given freely; or
  • when serious doubts suggest that the directives do not reflect the patient's presumed wishes in the given situation - especially because of developments in medical science (e.g. appearance of a new drug with fewer side effects), in which case the presumed wishes should be followed.

In these cases, the physician must document in the patient's medical record the reasons why he did not respect the living will. If the physician does not comply with the instructions or risks jeopardising the patient's interests, the authority may take necessary action, on its own initiative or upon the application of a relative of the patient.

3.2 Simple Procedure

The patient's living will must be made in writing, i.e. only signed and dated by hand. For preservation, the patient can keep it with him, give it to someone he trusts or to his doctor. He may also request the electronic mention of the living will's location on his health insurance card, with no mention of its content.

4. THE HEALTH CARE PROXY

In the context of or in addition to his living will, a patient may also designate a person for talking to his doctor and taking decisions on his behalf concerning the medical care to be administered, if he is no longer able to comment on the subject; he can also give specific instructions in this regard. The existence of such a proxy thus suspends the patient's confidentiality in favour of his medical representative, who may be informed of all relevant aspects of the treatment, its purpose, its procedures, risks, side effects, cost and consequences in case of lack of treatment.

This health care proxy may also be integrated into a lasting power of attorney to ensure optimal coordination with the tasks of representation vis-à-vis third parties as desired by the patient .

5. OTHER NEW DEVELOPMENTS

The reform introduces other developments in Switzerland for the protection of the adult.

5.1 Customised Measures

In the absence of a lasting power of attorney, the authority can only order an official measure of protection if it is necessary and appropriate. It is not limited by the existing categories, but rather must customise each measure, by choosing the type of guardianship, the matters it encompasses and the person to act as guardian/conservator.

Depending on the needs of the person concerned, the authority shall select from the following measures (which it can also combine as appropriate):

  • Guardianship support, to assist this person in performing certain acts. It can only be instituted with such person's consent and corresponds to the current voluntary guardianship.
  • Guardianship by cooperation, to submit certain acts of this person to the guardian's prior consent.
  • Guardianship by representation, to represent this person in performing certain acts. A special form is that of the asset-management guardianship, which includes any act which by its nature is able to preserve or increase that person's estate, or to achieve its intended purpose, such as contracting an obligation, selling property or initiating a lawsuit. Moreover, as the term "asset" must be understood broadly, the authority must specify the exact property that the guardian can manage and that he must diligently administer. This could mean the capital, the income or specific bank accounts of the person concerned.
  • Finally, the general guardianship for the person who especially needs assistance.

5.2 The Guardian and his Duties

The authorities must also choose a guardian and must take into account the wishes of the person concerned. They may only consider for this role individuals possessing, in addition to knowledge and time, appropriate personal and social qualities. Indeed, the new law gives increased importance to personal contacts between the curator and the person concerned. In addition, the appointee is required to accept the guardianship, unless there is good cause to refuse.

As before, the Adult Protection Authority monitors the guardian's activity, consents to some of his actions, reviews his reports and approves his accounts, although it can also grant certain exemptions to relatives acting as guardians.

5.3 A Clarified Procedure

Various points of the procedure applicable to the protection of adults have been clarified. Thus, the authority acts according to the inquisitorial system and of its own initiative, which means that it must establish the facts and apply the law by itself. In addition, the parties' right to inspect the files relating to the person concerned may be restricted if it is to protect overriding private or public interests.

In addition, any decision of the Protection Authority can be subject to appeal for false or incomplete statement of facts, infringement of law, inappropriateness of the decision, denial of justice or undue delay. As a rule, such appeal stays the proceeding, but the Protection Authority or the appellate court may withdraw such effect.

6. CONCLUSIONS

Lasting powers of attorney, living wills and health care proxies represent new tools for planning, which are welcome in Switzerland. Now, anyone can set in advance the provisions to protect his personal, legal and financial interests, in the event that he becomes incapable of managing his affairs, and even issue binding instructions relating thereto. With these modern tools, coordinating the devolution of an existing estate with succession plans becomes possible.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.