Protect your loved ones
If a parent, partner, or adult child is no longer able to manage their own affairs due to illness, an accident, or old age, you should determine quickly who is already authorized to act on their behalf. Since the 2013 reform of the law on adult protection, spouses and registered partners have a statutory right of representation for day-to-day matters (Art. 374 of the Swiss Civil Code) —limited to the shared household and not applicable to major financial transactions or matters involving children and siblings. If this right is insufficient and no advance care directive exists, guardianship by the authorities is required. If the person concerned is still of sound mind, it is advisable to establish an advance care directive now. We quickly determine which solution is best suited to your situation—for family members in Switzerland and abroad.
Contact: contact@alkatout-legal.ch | +41 22 512 04 05
It usually does not start with a legal question, but with a phone call: the bank, the insurance company, or the hospital asks who is authorized to sign on behalf of the person in question—and no one can give a clear answer. The triggers vary: an accident or stroke resulting in a sudden loss of control, progressive dementia, a serious mental illness, or simply advanced age, when administrative and financial matters become increasingly difficult to manage. In all cases, the same initial question arises: who is already authorized to act, and in what situations is that authority insufficient? We provide families in this situation with clarity in a short amount of time.
Since the 2013 revision of the law on adult protection, a spouse or registered partner has a statutory right of representation (Art. 374 of the Swiss Civil Code), provided that the couple shares a household or that personal assistance is provided on a regular basis. This right permits day-to-day legal acts—such as managing routine payments, administering ordinary income, or receiving mail. For extraordinary financial transactions, such as the sale of real estate, the written consent of the Child and Adult Protection Authority (KESB) is also required. With regard to medical measures, Art. 378 of the Swiss Civil Code establishes a specific order of priority for persons authorized to act on behalf of the spouse, which extends beyond the spouse.
The legal right of representation is more limited than many family members assume. Unmarried couples without a registered partnership are generally not covered by this provision—even after living together for many years, there is no automatic mutual right of representation in such cases. Adult children, parents, or siblings do not automatically have the authority to act on behalf of the affected person outside the order of medical representation set forth in Art. 378 of the Swiss Civil Code. And even a spouse may not make far-reaching decisions without involving the Child and Adult Protection Authority (KESB) unless there is a power of attorney for healthcare. In the absence of a suitable legal basis or a power of attorney for healthcare, guardianship is usually the only remaining solution.
As long as the person concerned is still able to freely form and express their wishes, a power of attorney for personal care and a living will can significantly simplify matters down the line. This allows the person to decide for themselves who will act on their behalf in an emergency—relatives, but also individuals outside the legal order of succession, such as a long-term partner who is not in a registered partnership. We assist families who wish to take this step now in ensuring these documents are drawn up in a legally sound manner.
If the person in question is already incapable of making decisions and there is neither a power of attorney for personal care nor sufficient legal representation, an application for guardianship must be filed with the competent Child and Adult Protection Authority. Since 2013, Switzerland does no longer practice legal incapacitation: guardianship is tailored to the support actually needed—as much help as necessary, as little intervention as possible. We guide family members through this process and review each measure to ensure it is proportionate.
INTERNATIONAL
SITUATIONS
As an international place to live and work, Geneva often involves cross-border situations: family members live in different countries, assets are located abroad, or the person concerned resides in Switzerland only temporarily. In such cases, the Hague Convention on the Protection of Adults determines which country has jurisdiction and how a lasting power of attorney established in Switzerland or a protective measure ordered there is recognized abroad. We clarify international jurisdiction at an early stage and, where necessary, collaborate with our network of partners in more than 80 countries.
HOW WE PROCEED
Every inquiry begins with a clear assessment of the situation: do you already have living will, what does it contain, and what steps are actually necessary—no more, but also no less. We guide you personally and discreetly, with strategy and trust as the foundation of every recommendation. When the situation calls for it, we collaborate with our network of financial planners and psychologists—to assess a person’s capacity to make decisions. As a firm specializing in family law, we are active in both German-speaking and French-speaking Switzerland and are here to support you.
For day-to-day matters, yes, provided that you live together or that he or she regularly provides you with personal assistance (Art. 374 of the Swiss Civil Code). For extraordinary financial transactions, the written consent of the authorities is required in addition. A power of attorney for financial matters provides significantly more leeway in this regard.
Outside the order of medical representation set forth in Art. 378 of the Swiss Civil Code, there is no automatic authority to act. For banking transactions, contracts, or the management of assets, either a long-term power of attorney or guardianship approved by the authorities is required.
In that case, family members have no legal right of representation. As a rule, the only option in such cases is to go apply for a ruling with the authorities, which will order a customized guardianship.
The duration depends on the urgency of the matter and the canton with jurisdiction. In an emergency, the authorities may order provisional measures while the regular proceedings are ongoing. We draft the application in such a way that it clearly reflects the actual situation.
The Hague Convention on the Protection of Adults facilitates recognition in the contracting states, but its provisions vary from country to country. In cases involving foreign elements, we assess the specific circumstances regarding recognition and, if necessary, consult our international network of partners.