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Blog No. 1
Advance directive – living will and powers of attorney
If a person becomes incapacitated, their ability to act without an advance directive, living will, or power of attorney is severely restricted. This applies not only to the person in question but also to their next of kin.
Mrs. M. from Zurich has contacted me in confidence with the following question.
Her mother, 72 years old and widowed, has been suffering from dementia for some time, and the associated cognitive impairments are increasingly noticeable in everyday life. Medically and legally, her mother is considered incapable of making her own decisions. As her daughter, what can she do in addition to the other daily challenges that come with her mother's illness?
Upon my inquiry, Ms. M. confirmed that no relevant legal arrangements, such as an advance healthcare directive or living will, exist, let alone a power of attorney in her favor. It is worth noting at this point how astonishing it is that while people take out insurance policies for so many areas of life, they ignore the possibility of a serious emergency and its consequences for themselves and their families. The relatives are the ones who suffer.
I am repeatedly confronted with this situation, and I see it as my duty to raise awareness among clients about the importance of drafting the relevant legally binding documents, i.e., orders, in a timely manner. This benefits not only the individuals concerned, who gain greater self-determination through these guardianship regulations, but also their relatives, who can act in accordance with the wishes of the ill person.
In our case, too, the responsible authority, the KESB (Child and Adult Protection Authority), will exert its full influence and power, which is probably not in the interest of the person concerned and whose interference is often displeasing to relatives.
This unpleasant situation of being restricted can be avoided by drawing up an advance directive, a living will, and a power of attorney early on; important arrangements that regulate the following topics:
- Personal care – personal well-being, such as medical care and choice of accommodation.
- Asset management – the financial aspect, including managing assets and paying bills.
- Legal representation, such as signing a care home contract or canceling a subscription.
In an advance directive, a person with capacity to make decisions can appoint a legal or natural person as their representative, i.e., their designated representative, to handle the aforementioned matters in the event of their incapacity. This person should be capable of acting on their own behalf, trustworthy, and also up to the task.
A power of attorney for personal care must, by law, meet various requirements. The Child and Adult Protection Authority (KESB) will also want to clarify many further details and information before the power of attorney is validated. This costs time and money. An online version from the internet cannot and will not meet these requirements and formal specifications.
The advance healthcare directive legally regulates medical issues, forms of care, and also addresses questions concerning life-sustaining measures in great detail.
Many people believe that a power of attorney covers everything. However, a Federal Court ruling states that all powers of attorney expire upon the onset of incapacity, unless they meet certain conditions. Therefore, it is all the more important that a power of attorney stipulates that it remains valid beyond death and, furthermore, that a clause must be included stating that the power of attorney does not expire upon loss of legal capacity.
When it comes to personal and legal planning, it is therefore worthwhile to seek professional advice. We offer you neutral and independent services and advice from our specialists and notary representatives. Your wishes and your will are our top priority.
Among the internet pages of www.plusminus50.ch You will find a wealth of information as well as video scenes on various topics that you can download, or informative fact sheets that you can order.
We have experts for the third stage of life, be it in the social and welfare sector as well as legal support with our business partners.
Get in touch with us – we look forward to hearing from you!
Warmest regards, Jürg Gyr!
