Growing Interest in Advance Directive and in Estate Planning

Anyone who loses his or her decision-making ability, that is, becomes impaired in judgement, faces the risk that the Child and Adult Protection Authority (Abbreviated as KESB) appoints by law a guardian, who, for the affected person, is an entirely unknown individual. This would usually imply that future decisions made on one’s behalf will be executed by someone not familiar with one’s preferences and wishes. This can become a source of numerous frustrations, especially when it comes to a choice of a care taker or of a nursing home, or when, for instance, one’s beloved home is to be sold to a stranger. In addition, the officially appointed guardian will be required to strictly follow regulatory requirements that are unlikely to be efficient and often do not take into account the affected person’s individual needs and preferences for assistance.

One of the most important issues that arise in the event of impaired judgement, are solid and safe arrangements for the management of one’s wealth.  In the absence of precautionary arrangements, this would have the consequence that investments with higher risks, such as shares, will be liquidated and, therefore, realising opportunities inherent in a professionally structured portfolio with long-term, attractive performance, would not be possible anymore in a low interest rates environment. Furthermore, all financial assets would need to be transferred to banks providing state guarantees. As a consequence, seasoned investment and pension funds managers, on whose advice one relied for many years, would be, thus released from their mandate. Not even one’s spouse has, under such circumstance, the authority to provide comprehensive care. Under the Swiss law, the spouse’s rights are limited to legal acts related solely to covering everyday needs concerning usual daily livelihood affairs and only to related to them money withdrawals.  All other extraordinary legal acts fall under the responsibility of the Child and Adult Protection Agency (KESB) ­- unless it was determined otherwise prior to the state of impaired judgement.

However, with Advance Directive and Estate Planning, the interference on the part of the authorities into private sphere of an individual can be largely avoided, and the self-determination of an individual can be reasonably protected also in the case of impaired judgment, loss of health as well as beyond one’s death. At the event devoted specifically to Advance Directive, two experts from swisspartners, Nathalie Schlösser, our legal consultant, and Konstantin Wyser, one of the Partners, took an in-depth look at this complex and multi-layered subject, analysed the more complex practical examples and offered solutions. The event attracted great interest. It is apparent, that increasingly more individuals become aware of the urgency to undertake precautious steps to safe-guard their interest in difficult life situations.

It is vital for such arrangements that strict formal requirements are complied with in order to ensure that the decisions about one’s destiny in difficult life situations and also in the case of death are made by the individual himself and possibly without drastic interference on the part of the designated authorities. Thus, in order to ensure legal validity of the Advance Directive, which makes provisions concerning both personal and financial affairs, it must be in its entirety hand-written by the affected person, dated and signed; alternatively, it must be publically notarised.

Nathalie Schlösser and Konstantin Wyser will be happy to provide you with personal advice.