Being incapable of good judgment is typically associated with old age, and specifically with conditions like dementia and Alzheimer’s disease. But there are many events which can lead to temporary or extended mental incapacity including accidents, allergies, medical conditions, psychological conditions or physical assault. Do you know who would make sure that your bills are paid if you had an accident which left you in a coma? Who would make medical decisions related to your treatment? Who would look after your investments? Because life is unpredictable, making a plan for the unexpected (and unhoped for) can help to protect yourself, your loved ones and your finances.
What is an advance healthcare directive?
An advance healthcare directive is a type of living will through which you give a specific person or legal entity the legal power to make decisions on your behalf if you become incapable of good judgment. The fact that an advance healthcare directive can be executed while you are still alive differentiates it from a standard will, which is only executed after your death.
There are three main aspects which must be considered when creating a living will – your physical care, legal representation and your finances. In Switzerland, all three aspects can be covered by a single living will which is known as a “Vorsorgeauftrag” in German or a “mandat pour cause d‘inaptitude” in French. You can also create separate living will covering each of these.
An advance health directive is a living will or a portion of a living will in which you specify what medical steps should be taken and which should be abstained from in the event of your becoming incapable of judgment. This includes a healthcare proxy which appoints an individual of your choice to make decisions related to your healthcare on your behalf if you ever become incapable of making your own decisions. It should also clearly state what should happen and how you would want to be cared for in many different possible scenarios. The person responsible for your care must strive to follow your directive as closely as possible with the goal of protecting you and your interests.
A living will can also include a power of attorney grants another person the right to manage your assets on your behalf. Here too, you must specify how you would want your financial affairs to be handled in the event of your becoming incapacitated – in as much detail as possible. Granting a person this right through your living will allows them to access your bank accounts without holding a power of attorney from your bank.
You may also use a living will to grant another individual a power of attorney to act as your legal representative in the event of your becoming incapable of good judgment. The appointee will be able to handle everyday legal affairs – such as the renewal of contracts – on your behalf if you are unable to do so. It does not give them the authority to enter into new, significant contracts on your behalf. If you want to grant special rights to the appointee, these should be clearly stated in your living will.
How can I create a living will?
Before you even begin writing up your living will, it is essential that you first discuss the matter with the person whom you wish to appoint as your representative. If you do not, you risk the appointee turning down the rights (and responsibilities) granted to them by the living will after you become incapacitated. Ask the prospective appointee whether or not they want financial compensation in return for time spent handling your affairs if you become incapacitated.
It is crucial that you imagine every possible scenario related to your healthcare, finances and legal matters and specify in detail what decision you would make in each situation. This makes it easier for your appointee to accurately execute your will on your behalf.
If the appointee would like financial remuneration for time and services rendered, make sure to specify exactly how much they should receive in your living will. If you do not do this and the appointee expects compensation when their services are required, the adult protection office has the right to determine fair compensation owed by you for services rendered by the appointee.
A Swiss living will must either be written, dated and signed by hand in clear handwriting, or it must be authenticated by a public office (by your municipal notary office, for example). Having your living will authenticated is a good idea even if it is hand written because doing so leaves no room for doubt about the document’s authenticity.
Your living will should be stored in a safe location, but one which can be accessed without your help because if/when it is needed, you will not be in a condition to find it yourself.
After creating your living will, you should inform your local civil register office that you have created it, provide them with the exact location in which it is stored, and let them know who has access to that location. If you ever become incapable of good judgment, the adult protection authority will follow these directions to obtain your living will, so make sure that the directions which you provide are accurate.
You retain the right to void your living will at any time by either destroying it or by creating a new living will (the date must be more recent than that on the living will which it replaces).
What happens if I become incapacitated?
When the adult protection authority becomes aware that you are incapable of good judgment, they will contact the civil register office to determine whether or not you have a living will. The adult protection agency then locates the living will and determines whether or not it has been properly authenticated. It also checks into whether or not the appointee is capable of executing the living will and, if they are, informs them of the rights and responsibilities which the living will bequeaths to them. The appointee can then decide whether or not they want to accept responsibility for the execution of your living will.
After accepting the appointment, the appointee retains the right to withdraw from the position as executor after a two-month notice period (notice must be given to the adult protection authority). The appointee is obligated to report any potential conflicts of interest between them and you as the testator to the adult protection authority. If serious conflicts of interest exist or arise at any time, the appointee will be obligated to give up their position as executor.
If at any point the adult protection authority finds that you have regained your capacity to make decisions and protect your interests, the terms of the living will become void and you regain full control over your assets, legal affairs and healthcare decisions.
Do I need a living will?
In the absence of a living will, responsibility for your affairs will fall on these individuals in this order: the adult protection authority representative assigned to your case; your spouse or registered partner; your life partner; your children; your parents; your siblings.
Creating a living will is a good idea for most people because it helps to safeguard your interests and gives you the opportunity to place responsibility for your wellbeing in the hands of a person whom you trust. Having a living will is of particular importance if:
1. You have concerns or objections about certain medical procedures.
2. You have a fair amount of assets, investments or debts which need ongoing servicing.
3. If you have ongoing contracts which need to be renewed on a regular basis.
Creating a living will or an advance healthcare directive is not difficult nor time-consuming. If the scenarios listed above describe your situation, consider taking the time to create one as soon as possible.