The advance care mandate: protecting the future

An accident, a degenerative illness, a stroke: a single event is enough to lose the capacity of judgement and with it the ability to sign a contract, dispose of one’s account or decide about a property. Who will take care of your affairs at that moment? In Switzerland the answer is not obvious, and without a precise instrument it is the authority, not the family, that decides. The advance care mandate (mandat pour cause d’inaptitude) serves exactly this purpose: to choose today, in full lucidity, who will act for you tomorrow.

What Swiss law provides

The Civil Code governs the advance care mandate within the framework of adult protection law. It is an act by which a person capable of judgement instructs one or more natural or legal persons to take care, should they lose that capacity, of three areas:

• personal care (everyday decisions, assistance, non-urgent medical matters);
• the administration of assets (bank accounts, payments, management of wealth);
• representation in legal relations with third parties (contracts, authorities, correspondence).

You can entrust all areas to the same person or distribute them among different individuals — for example a family member for personal care and a professional for the assets.

The formal requirements are strict

Here many make a mistake. The advance care mandate is valid only if it complies with a qualified form: as with the holographic will, it must be handwritten, dated and signed entirely by the principal, or received by public deed before a notary. A printed document that is simply signed has no value.

A second practical point: the mandate must be able to be found. It is possible to have the existence and place of deposit of the document registered with the civil registry office, so that the protection authority becomes aware of it when needed.

How it comes into force

The mandate does not take effect automatically. When the adult protection authority (APMA) learns that a person has lost the capacity of judgement, it verifies whether an advance care mandate exists, whether it was validly established, whether the conditions are met and whether the appointee is suitable to accept the assignment. Only after this validation is the appointee authorised to act and receives a document attesting to their powers.

This step is a safeguard: it prevents abuse and ensures that whoever acts does so in your interest. The appointee is moreover entitled to appropriate remuneration and to reimbursement of expenses, unless you have provided otherwise.

Why a banking power of attorney is not enough

Many think they are covered by a power of attorney granted to the bank or by a generic authorisation. This is not the case. Ordinary powers of attorney may lapse or be contested at the very moment you lose the capacity of judgement, and in any case cover only a narrow area. Without an advance care mandate, the authority appoints a deputy (curator) — who may not be the person you chose — with procedures, timeframes and controls that are far more burdensome for the family.

Who should draw one up

It is not an instrument reserved for the elderly. It makes sense in particular for:

• entrepreneurs and holders of company shares, whose sudden incapacity would block corporate and shareholder decisions;
• people with complex assets or property in several jurisdictions;
• de facto couples and blended families, where automatic legal relationships are weaker;
• anyone who simply wants to avoid an authority choosing in their place.

Coordinating it with the other instruments

The advance care mandate is one piece of personal planning and must be coordinated with the patient’s advance directives, with any succession provisions and with the corporate structure. A mandate written years earlier must also be reviewed periodically: trusted persons, assets and life circumstances change.

How we help you

We support you in drafting an advance care mandate that complies with the formal requirements, in choosing and coordinating the appointees and in integrating it with your wealth and succession planning. Plan the protection of your affairs.