Quick Summary
- The advance care directive only comes into force when the person giving the directive becomes incapable of judgment and the KESB determines this.
- Relatives or professionals must initiate the procedure with the KESB.
- The KESB then checks the power of attorney. In particular, the validity of the power of attorney and the suitability of the authorized person are checked.
- If the decision is positive, the authorized person receives a certificate.
- The duration of the procedure depends on the specific individual case. As a rule, however, a duration of several weeks can be expected.
Step 1: Creation of the advance care directive
In order for an advance care directive to be examined by the KESB, the person concerned must draw up an advance care directive. This must have been drawn up before the person became incapable of judgment.
In accordance with Article 361 of the Swiss Civil Code, the advance care directive must be drawn up in one of the following two forms:
- Handwritten: The person giving the order must write, date and sign it by hand from beginning to end.
- Public notarization: The exact form of public notarization is regulated at cantonal level. In any case , however, the notary must at least clarify the identity of the person giving the order and their capacity of judgment.
Once the advance care directive has been drawn up, it is advisable to inform family and friends of its existence and to store it in an easily accessible place. It is also possible to have the advance care directive deposited with the civil registry office upon request. This ensures that the KESB is aware of the existence of the advance care directive.
Step 2: Incapacity occurs
The advance care directive “lies dormant” until the person giving the directive has reached the age of capacity. Incapacity can be caused by illness, accident or old age.
Important: The order does not take effect automatically. It must be reviewed by the KESB in the next steps.
Step 3: Acknowledgement by the KESB
The procedure does not start automatically. The KESB must be informed of the person’s lack of capacity. This can be done, for example, by a person close to the person making the request contacting the KESB. These are usually doctors, nursing staff, relatives or other close persons.
The competent KESB, which must be contacted in writing for the examination, is located at the place of residence of the person placing the order. The following documents are required:
- The original advance care directive
- Medical certificate of incapacity to judge
- Personal details of the authorized person
Step 4: Examination by the KESB
The KESB is now examining the following points:
Is the person really incapable of judgment? The medical certificate submitted is usually sufficient. If anything is unclear, the KESB can order an additional specialist assessment.
Is the advance care directive valid? The order must be either completely handwritten or publicly notarized. The date, signature and specific task description must be present.
Is the authorized person suitable? The designated person must be capable of performing the tasks. For example, the KESB checks whether the authorized person has entries in the criminal or debt enforcement register or whether there are any relevant conflicts of interest.
Does the authorized person wish to accept this order? During the clarification procedure, the appointed person is also contacted and asked whether they would like to take on this assignment. If so, the appointed person will be invited to a hearing at the end of the procedure, during which the scope of all tasks will be explained to them.
Step 5: Decision and certificate
If the decision is positive, the KESB declares the power of attorney effective. The authorized person receives an official document confirming their powers. They can use this document to deal with banks, insurance companies and authorities.
What happens if the appointed person is not available?
If the principal has named a substitute person in the power of attorney, the suitability of this person is checked. If this is not the case and the person making the mandate is effectively incapable of judgment, the establishment of a guardianship is usually examined.
Duration and costs of the procedure
It usually takes 4-8 weeks to come into effect, but can take several months in complicated cases. The costs vary depending on the canton and are typically between 200 and 800 francs.
The fees are paid from the assets of the person lacking capacity, not from the authorized person.
Case study: How it works in practice
The situation: Mrs. Müller (82) lives alone and is showing the first signs of dementia. Her daughter Sandra notices that her mother is confused and no longer deals with important mail. Fortunately, Mrs. Müller drew up a power of attorney three years ago and appointed Sandra as her proxy.
Day 1 – Visit to the doctor: Sandra accompanies her mother to the family doctor. The doctor confirms the onset of dementia and issues a medical certificate of incapacity.
Day 3 – Application to the KESB: Sandra submits her mother’s handwritten power of attorney to the KESB, together with the medical certificate and the application for entry into force.
Week 2 – First check: The KESB checks the documents submitted. The advance care directive is completely handwritten, dated and signed. The tasks (asset management and health care) are clearly defined.
Week 4 – Hearing: The KESB invites Sandra to an interview. She confirms her willingness to take on the tasks and explains how she envisages caring for her mother.
Week 6 – Decision: The KESB declares the power of attorney effective. Sandra receives an official certificate with her powers.
From now on: Sandra can use the certificate to manage her mother’s bank accounts, make inquiries to the health insurance company and take medical decisions.