Loss of decision-making capacity Advance care directive and Kesb

The loss of decision-making capacity brings much change, and not only to those affected and their loved ones. The relevant authorities must play their part, too, and are involved in every case.

by Sothary Forte 06 Nov 2018

What happens if we suddenly or slowly lose our ability to act “appropriately” and become unable to make decisions? Who will take care of our affairs? The law on the protection of adults allows for different possibilities with different degrees of involvement from the authorities.

Legal right of representation for married couples/registered partners

If there is no guardian or advance care directive, married or registered partners who live in the same household as the person concerned have a legal right of representation. However, this right is limited and only permits, for example, the “regular” management of income and assets.

For more farreaching measures, e.g. adjusting a mortgage, you are legally required to obtain approval from the relevant child and adult protection authority (Kinder-und Erwachsenenschutzbehörde – Kesb). In some cases, Kesb’s involvement can be quite extensive.

Guardianship

When you lose your decision-making capacity, the relevant Kesb appoints a guardian at the request of someone close to you or someone from the government. The guardian’s authority goes beyond the statutory right of representation, but it is also not comprehensive. A guardian cannot freely decide on everything and requires the approval of Kesb for specific transactions (listed in the law text), such as purchasing and selling real estate. Kesb also reviews the guardian’s annual financial statement and report.

Advance care directive

Only an advance care directive (written by hand or with public certification) can define who truly acts on your behalf should you lose your decision-making capacity. This includes defining the scope of the powers. If decision-making capacity is lost, the original advance care directive must be handed to the relevant Kesb. It checks, among other things, whether the advance care directive was drafted correctly, that decision-making capacity is genuinely lost and whether the authorized person is suitable for the task.

If all requirements are met, Kesb issues a certificate to the authorized person in which his or her responsibilities are stipulated. After that, it generally only has to intervene if the authorized person has to manage transactions not covered by the individual advance care directive, or if the interests of the incapacitated person are no longer represented. Even with an advance care directive, you cannot completely avoid Kesb.

What you need to know

Kesb

There is no “single” Kesb. The 140 Kesbs in Switzerland are specialist interdisciplinary authorities composed of lawyers, social workers and psychologists. Depending on the canton, they exist at municipality, district or regional level as administrative or court authorities. Their primary responsibilities lie in ordering measures and describing the tasks of mandate holders.

Patient decree

A patient decree is not the same as an advance care directive. It allows you to define your preferences in terms of medical care or to choose an authorized representative who would represent you before a doctor if you are not able to make decisions for yourself. This can be the same person as in the advance care directive.