Loss of mental capacity Make clear arrangements with an advance care directive

Who should decide for you if you lose your mental capacity? An advance care directive lets you nominate a representative and more.

by UBS Insights 07 Jun 2021
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A loss of mental capacity can occur gradually or indeed very suddenly, usually due to illness or accident. When it happens, a spouse or registered partner living in the same household can represent you, but only for decisions required to cover your subsistence needs.

If you would like someone close to you to be able to settle your personal, financial and legal matters on your behalf, you can set up an advance care directive.

How to arrange this and when

As a legally competent individual residing in Switzerland, you can arrange, amend or revoke an advance care directive at any time. You may formulate the document yourself. You must either write it out in full by hand, adding a date and signature, or you can draw it up with the help of an accredited notary. You can find templates and examples of advance care directives online. It is best to provide a copy to the representative and to tell them where you have stored the original.

In the event of a loss of mental capacity without an advance care directive or legally recognized partner present, the Child and Adult Protection Authorities (KESB) responsible for your place of residence will assign a support person. This person will exercise the right to act as your representative on your behalf and in coordination with the KESB.

If you have not provided an advance care directive but there is a legally recognized partner present, all decisions that go beyond coverage of the affected person’s living costs will require the involvement of the KESB. This can apply, for example, to the sale and mortgaging of residential property or to complex financial transactions.

Did you know that there is no legal right of representation for common-law partnerships?

Tips and facts about your retirement

Knowledge pays dividends – including for your retirement. Our free guides and publications contain solid information and handy tips for your retirement, such as our factsheet for common-law partnerships.

Who you can nominate

You are largely free to decide who you nominate in your advance care directive. The person(s) must be of legal age and capable of sound judgment, both when you nominate them and when you are deemed to have lost your mental capacity. The person you have chosen must also agree to perform the role. You may also select several people or a legal entity.

Aspects over which you have control

There are three main areas where you can lay down the competences of the persons nominated in your advance care directive.

  • Personal care: This concerns the organization of daily life, including any medical or care arrangements. Detailed medical arrangements and/or treatments can also be recorded in a patient decree. Should one exist, it is best to mention in the advance care directive that this decree has priority.
  • Asset management: You can define powers for the following: paying invoices, managing your assets, adjusting your investment strategy or selling a property.
  • Legal matters: Here you determine that the designated person may represent you when dealing with the authorities, insurance companies, banks or private individuals, and to conclude or terminate contracts in your name.

When the advance care directive enters into force and how

When an individual loses their mental capacity, the KESB checks whether a valid advance care directive exists and if the person nominated therein can act as representative. If these conditions are met, the KESB will issue a validation decision to the nominated person. This document authorizes them to perform the tasks described in the advance care directive, enabling them to act in accordance with your wishes.