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Incapable of judgement: who represents my interests?

If you are in a coma after an accident, or you are unable to take care of yourself because of an illness, someone else needs to take care of your affairs, and make important decisions for you. A lasting power of attorney (LPA) allows you to determine who that person is.

According to the law, those who can act rationally have mental capacity. An illness or an accident can lead to a person losing mental capacity, and no longer being able to manage their own personal or financial affairs. This can be temporary or permanent.

A person who lacks mental capacity needs a person to look after their interests and assist them. The law provides for spouses or registered partners to take care of everyday things; however, these persons are not authorised, for example, to buy or sell real estate. To do so, they must consult the child and adult protection authority.

In the case of single persons, the child and adult protection authority appoints a deputy to assume these tasks from the outset.

The person of trust can also be determined in advance. A lasting power of attorney addresses this situation by appointing either one person to deal with everything or several persons for different matters.

Requirements for a lasting power of attorney

The following applies to the lasting power of attorney (LPA):

  • There are two forms:
  1. You can write, date and sign the directive by hand.
  2. You can have the LPA prepared and certified by a notary
  • The tasks assigned to a person you appoint must be described in detail. These may include some or all of the tasks that a deputy would otherwise need to assume.
  • You also need to say what the person you appoint will be paid in fees and expenses. Otherwise, the child and adult protection authority will determine an appropriate amount.
  • You can amend or revoke the LPA at any time.

You can find information sheets and models for LPAs on the internet. 

Safekeeping

You can keep your LPA at home, but make sure it can be found it when needed.

You can notify the Civil Register Office where it is kept to be sure that someone can find your LPA quickly and easily in an emergency. This costs CHF 75.

In certain cantons, the LPA can also be deposited with an authority, which is either the child and adult protection authority, the family court or the official notary office.

Loss of mental capacity

The competent child and adult protection authority must confirm that a person has lost mental capacity. It will check whether there is an LPA. If there is, it checks the LPA:

  • Is it valid? Have the formal requirements been complied with and did the author have mental capacity at the time the LPA was drafted?
  • Is the person appointed suitable? Does he/she have mental capacity? Is he/she up to the task?

The child and adult protection authority will decide on any fees or expenses if this is not regulated in the LPA.

Once these issues are clarified, the appointee decides whether he/she wishes to accept the appointment. If yes, the child and adult protection authority will provide him/her with the

LPA document. Then the child and adult protection authority’s tasks are almost complete. It only intervenes again in the event that your interests are at risk.

Standard power of attorney

A standard power of attorney has similar effects to a lasting power of attorney. In principle, however, a standard power of attorney is valid as soon as it has been granted. Today, it is no longer possible to regulate representation in the event of loss of mental capacity by means of a standard power of attorney. In addition, banks in particular are no longer prepared to accept standard powers of attorney if the person granting the power of attorney has lost mental capacity.