Advance Care Directive (Mandate in Case of Incapacity)

A hundred years ago, the issue of representation in the event of incapacity was of little relevance in Switzerland, as life expectancy was around 58 years. Today, the Advance Care Directive (Mandate in Case of Incapacity) has become increasingly important due to an ageing population and the rising prevalence of dementia. In 2022, approximately 150,000 people in Switzerland were living with dementia. A revision of Swiss adult protection law is currently underway to further improve this legal instrument.

1. Basic Concepts

The Advance Care Directive allows a person (the principal) to designate in advance a representative (the agent) who will take care of personal, financial, or legal matters should the principal become incapable of judgment.

It forms part of Swiss adult protection law and is based on the principle of subsidiarity: public authorities intervene only when no private solution exists.

The Advance Care Directive is a hybrid legal instrument that combines elements of contract law, inheritance law, and adult protection law.

2. Roles

• Principal

The principal must have legal capacity at the time the directive is established and should carefully consider possible future circumstances.

• Agent

The agent may be either a natural person or a legal entity and is required to act diligently and in accordance with the principal’s instructions.

• Adult Protection Authority

The authority verifies the validity of the directive and intervenes when necessary in the event of difficulties or disputes.

3. Capacity of Judgment

The Advance Care Directive is valid only if the principal had capacity of judgment when it was executed. It becomes effective only when the principal loses that capacity. Assessing capacity can be particularly challenging in cases of progressive illnesses.

4. Practical Importance

The Advance Care Directive makes it possible to avoid a court-ordered guardianship and strengthens individual self-determination. Nevertheless, it remains relatively uncommon due to its complexity and the limited public awareness of its existence.

5. Distinctions

The Advance Care Directive must be distinguished from the following legal instruments:

• Powers of attorney;

• Statutory representation rights of a spouse;

• Guardianship or protective measures;

• Wills and testaments.

It may, however, be combined with other legal instruments, provided that clear arrangements are made to avoid conflicts.

Conclusion

The Advance Care Directive is an important tool for personal planning in the event of future incapacity. Ongoing legal reforms are expected to make its use simpler and more effective.

For further information on this topic, please do not hesitate to contact us. We will be pleased to assist you.