Guardianship &
Tutelage
Since the 2013 reform of adult protection law, Switzerland no longer has legal incapacitation. The previous system was replaced by varying guardianships: a tailored administrative measure that is precisely adapted to a person’s actual need for support—ranging from simple assistance to comprehensive representation in all matters. The Child and Adult Protection Authority at the person’s place of residence is responsible for this process. The procedure can be initiated by family members, the person concerned, or ex officio, and is strictly guided by the principle of proportionality: as much help as necessary, as little intervention as possible. We guide families through the entire process and critically evaluate each measure to ensure it is appropriately proportionate.
Contact: contact@alkatout-legal.ch | +41 22 512 04 05
Until 2013, Swiss law provided for legal incapacitation: a rigid, often blanket measure that completely or largely deprived a person of their legal capacity. These categories have been abolished. They have been replaced by a single, flexible instrument—guardianship—which the authorities tailor precisely to the individual’s needs. The person concerned retains as much self-determination as possible; restrictions are applied only where they are truly necessary. This principle of proportionality runs throughout the entire process, from the initial order to periodic reviews.
The law distinguishes four basic forms, which can be combined:
Accompanying guardianship (Art. 393 Swiss Civil Code): Purely supportive and advisory; the person concerned retains full legal capacity and must consent to the measure.
Representative guardianship (Art. 394 Swiss Civil Code): The guardian acts on behalf of the person concerned in specific matters, such as the management of assets (Art. 395 Swiss Civil Code).
Participatory guardianship (Art. 396 Swiss Civil Code): Certain legal acts by the person concerned are made contingent upon the guardian’s consent.
Comprehensive guardianship (Art. 398 Swiss Civil Code): The most far-reaching form, intended for individuals with a permanent, particularly pronounced need for support; it results in the loss of legal capacity in the relevant areas.
Which form is appropriate is determined by a careful assessment of the individual case—not by a blanket diagnosis.
The proceedings may be initiated by the person concerned, by close relatives, or ex officio—for example, following a report by a doctor, a caretaker, or a social services agency. The authorities investigate the facts of the case, typically obtain a medical or social services report, and meet the individual in person, to the extent possible. In urgent cases, the judge may order precautionary measures even while the regular proceedings are still underway. We prepare applications in such a way that the urgency and actual need are clearly evident to the authority.
The authorities take the wishes of the concerned individual into account and, whenever possible, appoints a person close to them, provided that person is suitable and willing to serve in this capacity (Art. 400(2) of the Swiss Civil Code). If there are conflicts of interest within the family or if the family members lack the capacity to handle the situation, the authority appoints a professional guardian or an official agency. We consult with the family members to determine whether it makes sense for them to assume this role and support them in their interactions with the authority.
Every guardianship is periodically reviewed and adjusted as soon as the need for support changes (Art. 414 of the Swiss Civil Code)—it is not a final decision. The concerned individual has the right to a personal hearing and may file an appeal against decisions made by the authorities. If the situation improves, a request may be made to revoke or adjust the measure. We represent both the concerned individuals and their family members in these proceedings when an existing measure is to be reviewed or challenged.
INTERNATIONAL
SITUATIONS
For families with international ties—for example, when the concerned individual, their relatives, or their assets are located in different countries—the Hague Convention on the Protection of Adults governs jurisdiction and the recognition of protective measures across national borders. A guardianship ordered in Switzerland does not automatically have the same effect abroad. We clarify international jurisdiction at an early stage and, if necessary, draw on our network of partners in more than 80 countries.
HOW WE PROCEED
A court procedure directly affects a family’s privacy—discretion is therefore a fundamental requirement of any help that we offer. We provide you with personalized support, guided by a clear strategy and built on a foundation of trust. When the situation calls for it, we collaborate with our network of financial planning and psychology experts—notably to conduct a thorough assessment of your needs. As a firm specializing in family law, we operate throughout German- and French-speaking Switzerland and are here to support you.
Legal incapacitation was a rigid, often blanket measure that was abolished in 2013. Guardianship, on the other hand, is tailored to each individual’s actual need for support and ranges from simple assistance to comprehensive representation.
The concerned individual, close relatives, or the authorities acting ex officio—for example, following a report from a doctor, a caretaker, or a social service. Third parties may also report a matter to the authorities.
Yes, the judge gives preference to close relatives, provided they are suitable and consent. If there are conflicts of interest or if they lack the necessary resilience, a professional guardian or an official agency will be appointed.
The duration depends on the canton and the urgency of the matter. In cases requiring immediate action, the judge may order provisional measures while the regular proceedings are still pending.
Yes. If the person’s situation improves, the measure will be adjusted or lifted. The guardianship is also periodically reviewed ex officio.