The advance care directive: the proper tool for a future in good hands.
Matteo Suckow
The health crisis has taught each one of us that tomorrow may have developments in store that, in times of calm, we unconsciously tend not to consider. It is crucial in this perspective to be prepared, using the present to anticipate unpleasant surprises that the future unfortunately might sometimes bring. The advance care directive is a simple and effective means of ensuring that our interests are protected at a delicate stage of our existence.
Aim of the advance care directive
The advance care directive is an instrument provided for in the Swiss Civil Code (SCC) that allows any individual of age to entrust a person of his or her trust with the task of acting on his or her behalf in the event of a loss of capacity of judgement.
Reasons for an advance care directive
The loss of capacity of judgement represents a moment of great uncertainty in which the persons concerned need special protection. The law takes this need into account by granting an administrative authority – the adult protection authority (in Ticino the so-called "Autorità regionali di protezione") – the right and duty to intervene when a person loses its capacity of judgement. This sovereign intervention is not only potentially destabilizing for family members, but also does not always enable the interests of those who should be protected to be adequately safeguarded. The advance care directive is intended to alleviate precisely this problem: By choosing an appointee (i.e. a person who takes the place of the person incapable of judgement, the so-called client) and issuing precise instructions, the advance care directive enables the client to preserve his or her right to self-determination and to limit the state’s interference in private affairs by anticipating his or her wishes.
The tasks that can be assigned to the appointee
The tasks assigned to the appointee can vary greatly in nature and scope. As a rule, the delegated tasks are personal care (in the case of medical decisions, etc.), property care (e.g. in the case of investments and mortgages) and representation in legal matters (such as in the context of tenancy agreements, etc.). The appointee's scope of action may be limited to one of these areas or include all of them. The details are specified by the client in the document in which the mandate is given. In the case of medical decisions, it should be noted that if there is a patient decree, it takes precedence over the advance care directive.
Who can become an appointee?
A natural person (e.g. a daughter), a legal entity (e.g. an organisation such as Pro Senectute) or a plurality of persons (Art. 360 SCC) may be appointed as appointee. In the latter case, it is conceivable to jointly appoint a relative and a trusted professional (e.g. a trustee or a doctor), to whom decisions on the specific area of responsibility are delegated. It is advisable to provide for substitute delegated persons or to foresee arrangements to deal with the case that the appointee is unable to perform the task at the crucial moment (due to an absence or for other reasons). Since the appointee is not obliged to accept the advance care directive and may terminate it at any time (art. 363 para. 3 and art. 367 SCC), it is also advisable to contact the potential appointee in advance to verify his or her willingness to assume the role.
Execution and revocation of the advance care directive
The advance care directive must be issued in one of the two legally permissible forms (art. 361 SCC), i.e.:
personally handwritten (entirely in one's own hand, including the date and signature);
by public authentication (public deed or notarial patent, both of which require the involvement of a notary).
The person responsible for keeping the document is the client or the notary. The existence of an advance care directive and the place where it is deposited can be entered in the centralised register for the electronic registration of civil status (Infostar). The revocation of the advance directive is possible at any time, either in one of the ways prescribed for its issuance or by destroying the document (art. 362 SCC). Finally, the advance care directive shall by law cease to have effect when the client regains the capacity of judgement (art. 369 SCC).
What else needs to be considered?
In order for the advance care directive to become an effective tool of self-determination, it must contain sufficiently specific provisions to guide and limit the actions of the appointee. At the same time, an excessive level of detail must be avoided, which in the worst case could lead to a stalemate and force an unwanted intervention by the adult protection authority.
If you have any further questions, please do not hesitate to contact us. We will be happy to assist and support you in setting up an advance care directive tailored to your very own needs.
