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THE ART OF CARING: PROVISIONS FOR IMPAIRED DECISION-MAKING ABILITY – swisspartners – The art of finance

The art of caring: provisions for impaired decision-making ability

Have you made provisions for acknowledgement of your rights to self-determination for the case of impaired decision-making?

In Switzerland since the adoption of the new legal regulation on January 1st, 2013 in case of impaired judgement and in absence of advance directive (Vorsorgeauftrag), which states, who shall care for your personal or financial matters or represent you legally in case of legal incapacity, it is the KESB – the Child and Adult Protection Authority – that, under the Swiss Law, decides about custodial care. Usually it is a staff member or an employee of a designated organization. For you and your personal and business assets the appointment of a representative by the KESB could imply, that future decisions on your behalf, will be made by people, who are not familiar with your actual wishes and preferences. With an adequate precautionary contract – an advance directive (Vorsorgeauftrag) – you can offset this by designating a person, of whom you can be sure to act in your best interest.

If a person with impaired decision-making abilities is married or lives in a registered partnership, the Swiss law regulates this circumstance by means of the right of representation. However, the right of representation is limited to legal acts related to satisfaction of everyday needs; these include provision of one’s usual maintenance, an orderly management of one’s income and other assets, as well as handling of mail and e mail correspondence.

All other legal actions, such as the sale of a jointly acquired real estate, the sale of securities or the adjustment of the investment strategy, require the approval of the KESB. Current asset management contracts will be subjected to examination by the Child and Adult Protection Authority, while their terms may possibly be terminated and re-negotiated. Obtaining approvals takes usually a very long time due to limited capacities of the KESB. Timely decisions regarding financial and business related issues are rarely possible.

For the event of a judgement incapacity due to an accident, serious illness or age related judgment impairment, it is highly advisable to undertake precautionary contractual arrangements to assure, that the person authorised to make decisions on your behalf, knows your wishes and preferences, and can, thus, act upon them. swisspartners Wealth Management AG advises you professionally in these matters and supports you in drawing-up a legally binding advance directive (Vorsorgeauftrag).

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