OLD AGE: HOW TO DECIDE IN ADVANCE ON THE MANAGEMENT OF YOUR ASSETS
Following the amendment of the law on guardianship which came into force on January 1st, 2013, everyone may freely take personal anticipated measures in order to establish a mandate for the management of property in case of incapacity eand in order to give personal instructions to the medical profession for advance directives.
Let us look at what these new provisions consist of:
Mandate in Case of Incapacity
With such a mandate, a third party is entrusted with the management of your property and/or to provide personal assistance, but only in the event of the loss of your capacity of judgement.
The chosen agent may be any trusted person, family member, friend or professional agent (notary, lawyer, asset manager, etc.). It can be a legal person (a fiduciary company, a family office, a bank).
The appointed third party has no obligation to accept the mandate when the time comes and may decide to resign. It is therefore advisable to provide for substitution clauses. The mandate may contain details of the activity entrusted to the agent, the way the instructions given are to be carried out and the compensation for such activities. The content can be adapted to all kinds of special cases.
There are two forms to establish this mandate for incapacity: in writing or by authentic act. Both forms allow the principal to register the mandate with the registry office, so that it is known that this document exists at the time of the incapacity. The authentic act signed by the notary will in all cases be kept by the latter.
When the incapacity of judgement occurs, the guardianship authority is responsible for verifying the validity of the mandate and the suitability of the appointed representative. If necessary, it shall provide the agent with an official document attesting his power of representation and his qualification to carry out the management mandate given by the principal.
Thereafter, the authority intervenes only periodically, as a supervisory authority. It should be noted that the mandate ends as soon as the principal regains his capacity for judgement, thus it is not a final mandate.
What about people who have not established a mandate in case of incapacity?
In the event of a lack of capacity of judgement, the law provides that the spouse (or registered partner for same-sex couples), still living in the same household as the person concerned and/or providing regular personal assistance, has a legal power of representation. Thus the unmarried or unregistered partner has no legal power of representation.
Advance directives of the patient
Advance directives must be drafted in the simple written form: the person must date and sign the document by hand, which may be typed or even consist of a printed form. These instructions can be kept by the person, or better still, entrusted to his or her doctor or any other trusted person.
These guidelines are binding on the doctor unless they are contrary to law (e. g. direct active euthanasia) or do not correspond to the patient’s free or presumed will. The law entitles the patient’s immediate family to appeal to the adult protection authority when the guidelines are not respected or if there is evidence that they have not been set freely by the patient.
Advance directives may be included in a mandate in case of incapacity
What about people who have not designated a contact person for their doctor?
The spouse (or registered partner) has legal authority. The unmarried partner, who is a common household member, also has a power of representation. Children and grandchildren, fathers and mothers, and siblings also benefit from such powers, as long as they provide personal assistance.
Etienne Jeandin – Notary in Genève
Summary of the article published in the daily newspaper “Le Temps” on 18 June 2012