Advance Care Directive And Living Will – Health And Wealth Planning Tools

Author:Ms Tina Wüstemann and Daniel Leu
Profession:Bar & Karrer
 
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Swiss adult protection law is based on the right to self-determination. It provides for two instruments in this regard: an advance care directive (so-called Vorsorgeauftrag) and a living will (so-called Patientenverfügung). It enables persons to draw up binding instructions as to how they want to be treated in the event of loss of capacity of judgment and how representation by their designated representatives should be carried out.

Adult Protection Authority

The child and adult protection law sets forth that each Canton in Switzerland has its own Adult Protection Authority (APA). The APA guarantees the protection and support of people who lack capacity of judgment and who are, thus, no longer in a position to look after themselves. The APA will implement the necessary measures if it becomes aware that a person suffers from incapacity of judgment. Anyone may notify the APA, if they consider a person to be incapacitated. However, since the adult protection law is based on the principles of autonomy and the subsidiarity of state measures, anyone may set forth binding instructions in advance by issuing (1) an advance care directive (ACD) and/or (2) a living will.

Advance Care Directive

Any person with legal capacity can issue an Advance Care Directive and appoint a natural person or a legal entity to represent him/her in case he/she becomes incapacitated. It is also possible to appoint several representatives to represent the principal with regard to different matters, e.g. personal care and/or financial affairs and relating representation in legal matters. Personal care generally relates to matters of everyday living, such as administrative matters, dealing with mail and taking decisions about the principal's residential situation. A representative designated with the representation in financial affairs must submit the principal's tax returns, manage his/ her assets, as the case may be, and take care of financial matters in general.

An ACD enables a person to draw up tailor-made instructions with regard to his/her representation in case he/she becomes incapacitated. In particular, it is useful to protect the principal's assets, e.g. if he/she owns a family business, has substantial investments or in case the financial situation is complicated. It also provides the opportunity to coordinate lifetime wealth planning with estate planning in the best possible way.

Formal Requirements

An ACD must either be hand-written (from beginning to end)...

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