Healthcare proxy or power of attorney?

Lasting power of attorney or power(s) of attorney for the loss of capacity to act? Both are best!

Recently, the recommendation has become very popular that you should draw up an advance care directive in the event that you become incapable of judgment, in which case you have made provisions for all eventualities and the child and adult protection authority (KESB) is also eliminated. Neither is true in this absolute form, which is why we recommend a two-stage procedure to our clients.

Health care proxy

The advance care directive, which has been regulated by law since January 1, 2013, appoints a representative only in the event of incapacity of judgment. This is done either completely by hand with a place, date and signature, as with a handwritten will, or by public deed. Contrary to popular belief, the KESB is not completely excluded. It is true that there is no provision for constant supervision and approval of important transactions by the KESB, as would be required in the case of guardianship. However, as soon as a person becomes incapable of judgment (e.g. senile dementia, severe stroke, etc.), the guardian must inform the KESB. The KESB will then check not only the validity of the advance care directive and the existence of incapacity, but also whether the appointed person is suitable for their role and whether any further measures under adult protection law are required, such as the submission of an inventory, the periodic settlement of accounts or the restriction of powers (Art. 363 and 368 ZGB).

The KESB is therefore not completely eliminated with the power of attorney. However, the representative can act much more independently than an advisor, especially if he or she is expressly granted power of attorney for particularly important transactions, e.g. in accordance with Art. 416 ZGB. However, if the incapacity is not due to a loss of capacity but, for example, to purely factual reasons such as vacations, accidents and the like, the power of attorney has no effect at all and, in the absence of corresponding powers of attorney, the person would in fact be without representation.

General and special power of attorney

Despite the new legal regulation of the advance care directive, "normal" powers of attorney can still be validly agreed. If they are already valid immediately (at least in theory) and are expressly granted beyond the loss of capacity, they remain fully valid thereafter. This is evident from the fact that the new law also introduces an obligation for "normal" agents to inform the KESB if the principal is "likely to become permanently incapable of judgment" (Art. 397a CO; the legislator itself therefore assumed that "normal" powers of attorney/assignments would continue to apply). However, various stages are conceivable up to the point of permanent incapacity of judgment, which in no way require the KESB to be informed. In addition to the aforementioned purely actual incapacity of the principal (prolonged absence abroad, accident and the like), frailty, inconvenience, excessive demands, lack of time or a merely temporary incapacity of judgment can also make representation appear sensible and permissible without the KESB having to be informed (or not even being informed, as there is no permanent incapacity of judgment).

We therefore recommend that our clients issue a general power of attorney that is as comprehensive as possible for all day-to-day transactions and a special power of attorney for particularly important transactions, such as disposals of real estate in particular, which must also be signed by the appointee to indicate his or her consent. It is also often advisable to appoint several authorized representatives who are authorized to sign individually for day-to-day transactions, but who can only sign collectively in pairs for more important transactions (e.g. more than CHF 10,000 in individual cases).

Practical procedure

The (general and special) powers of attorney should be drawn up in writing for evidentiary purposes and signed by all parties involved, whereby the signature of the principal must be officially notarized for security purposes. Of course, the principal can still carry out all transactions himself, as the power of attorney in no way restricts his own capacity to act. If he fears abuse by the authorized representative, he can revoke the power of attorney at any time.

The (handwritten or publicly certified) advance care directive is best kept by the advance care representative or at the civil registry office. As it triggers the involvement of the KESB, it should only be used in the event of obvious and permanent incapacity of judgment.

We will be happy to help you draft documents tailored to your situation. Typically, these are only used when any (formal) errors can no longer be corrected. It is therefore advisable to make the arrangements carefully.