2010: Legal capacity and proxy decision making
Issues surrounding loss of legal capacity
The Swiss Civil Code of 10 December 1907 (RS 210) addresses the issue of incapacity. Article 13 states that adults who are capable of discernment can exercise their civil rights. Discernment is defined in article 16d as follows:
Any person who has not been deprived of the faculty to act with reason due to his/her young age, or has not been deprived of it as a result of a mental illness, weakness of the mind, drunkenness or other similar causes, is capable of discernment according to this law.
Adults who are incapable of discernment, minors and people who have been legally declared incompetent cannot exercise their civil rights according to article 17.
The Cantons designate the authorities which are responsible for declaring incompetence and the procedure to follow. Recourse to federal tribunals is possible (to preserve one’s rights). Whenever a person is declared legally incompetent, this must be published in the official journal in the person’s place of residence and place of origin. However, this is no longer the case in the new law on guardianship and incapacity (please see explanation later in this report).
A person may only be declared legally incompetent on the grounds of a mental illness or “weakness of the mind” if an expert opinion has been obtained to that effect. The report provided by the expert must indicate whether the person can be questioned (art. 374).
Proxy decision making
Switzerland is in a transitional period due to the fact that the parliament has adopted a new law on the protection of adults but this law has not yet come into force.
Below, you will find details about the legislation in force and the new law.
Conditions for the appointment of a guardian
There are three main guardianship possibilities: legal counsel (conseil legal), tutorship (tutelle) and curatorship (curatelle).
A tutor may be appointed for any adult who, due to mental illness or weakness of the mind, is incapable of managing his/her own affairs, cannot manage without permanent care and assistance or threatens the security of other people (art. 369 of the Civil Code).
Any adult who can show that s/he is incapable of managing his/her own affairs due to age-related weakness (“faiblesse sénile”), illness or lack of experience can ask for a tutor to be appointed (art. 372IV of the Civil Code).
A curator is appointed to assist a person with specific needs on a temporary basis. The person in need of assistance can request a curator him/herself. This measure is less restrictive than tutorship.
People for whom a curator is appointed retain their civil rights (article 417) but are nevertheless limited in exercising such rights. The duration of curatorship and payment for this service is fixed by the guardianship court (l’autorité de tutelle).
There are three types of curatorship:
- Representative curatorship which is usually for adults (who are ill or absent) or in cases where there is a conflict of interests between a legal representative and the person concerned (article 392 of the Civil Code)
- Management curatorship which is for people whose personal assets (e.g. financial, business or property) are not managed or are insufficiently managed (article 393 of the Civil Code).
- A combination of the two.
Legal counsel is a measure which falls between tutorship and curatorship. It involves the limitation of a person’s civil rights but only those linked to the management of personal assets. There are three types of legal counsel:
- Cooperative legal counsel which involves the management of certain personal assets and leaves the person concerned the right to manage all other affairs
- Management legal counsel which involves the management of all the person’s personal assets (but allows the person to manage the income from his/her wealth and the proceeds of his/her work).
- A combination of the two
In practice today, the legal counsel has practically disappeared and also tutorship is more and more being replaced by the combined curatorship, especially for elderly people who are incapable of managing their own affairs. This measure can actually be taken for a longer period.
How guardianship is arranged
The tutelary authority (autorité tutélaire) is the official body responsible for guardianship measures and is designated by each canton. It can be a judiciary authority, an administrative authority or a combination of the two.
When a tutor takes up his/her functions, s/he and a representative of the guardianship court make an inventory of the ward’s possessions. If sufficiently capable, the ward can also take part in the inventory.
The supervisory authorities can request a public inventory if they deem this necessary (art. 398).
The guardianship authorities may decide that it is in the interests of the ward to sell certain personal belongings (but not property, houses or land etc.), but items that are of sentimental value to the person’s family are not usually sold (art. 400).
Who can be a guardian (i.e. a tutor or curator)
The tutelage authorities appoint an adult who is capable of fulfilling the necessary functions. Several tutors may be appointed who act together or according to their own specific abilities (art. 379).
Usually, provided there is no conflict of interest, a close relative such as the spouse is chosen, taking into account personal relationships and geographical proximity. The wishes of the person for whom the measure is intended are usually given preference. If designated, a spouse is obliged to be the tutor but may be excused in certain circumstances e.g. if over the age of 60 (art. 380-383). This is something that will change if the new law is passed in that there would no longer be any obligation on spouses to become the tutor.
The curator is also appointed by the tutelage authorities of the place of residence of the person for whom the measure is intended. For curators who are responsible for the management of assets, they are selected by the tutelage authorities in the place where the largest part of the future ward’s assets were located or managed (art. 396).
The duties and responsibilities of guardians
The role of the tutor is to provide assistance and to represent a person who is partially or totally incapable of managing his/her own interests and those of his/her family. The appointment of a tutor results in a considerable restriction of a person’s contractual capacity. According to article 406 of the Civil Code, it is the tutor’s duty to protect his/her ward and to assist him/her in all personal matters. The tutor also has the right to place the ward in an institution against his/her will but under the conditions of art. 397a-f of the Civil Code (fürsorgerische Freiheitsentziehung, privation de liberté à des fins d’assistance).
According to article 419 of the Civil Code, the role of the curator is to keep an eye on or manage a person’s assets but s/he only carries out administrative and conservatory acts. S/he can only take other measures with the special consent of the person who is being represented or if the latter is incapable of consent, with the consent of the tutelary authorities.
The duties of the legal counsel are limited to the protection of a person’s material interests. In practice, the provision of personal assistance tends to be accepted (Perrinjaquet, 2007).
Measures to protect the ward from misuse of power
The person subject to tutorship (i.e. the ward, provided that s/he is capable of discernment) and any other person concerned can complain to the tutelage authorities about the acts of a tutor and to the supervisory authorities about decisions made by the tutelage authorities (art. 420).
A tutor who is insolvent or guilty of grave negligence/abuse in the fulfilment of his/her functions may be dismissed by the tutelage authorities. A tutor who does not perform his/her duties in a satisfactory manner may also be dismissed even in the absence of an actual fault (art. 445).
The tutelage authorities request periodic reports from tutors which it examines. It may request the rectification of these reports and/or additional information. It also has the right to take any necessary measures in the interests of the ward (art. 423).
Duration of the guardianship measure
Tutorship and curatorship end when the conditions which led to their being set up no longer exist (art. 433 and art. 439). In such cases, the declaration of legal incapacity must be cancelled. The cancellation of the declaration of legal capacity can be requested by the person him/herself or by any other person with an interest in the matter (art. 433).
The right to appeal
An appeal against decisions made by the tutelary authority can be addressed to the surveillance authority (art. 450).
Reform of guardianship legislation
Present guardianship measures and procedures are not in line with modern circumstances and attitudes and do not respect the principle of proportionality to a sufficient degree. Consequently, the Federal Council decided to amend the Swiss Civil Code. Due to the Swiss legislative process it took several years before Parliament adopted the new legislation in December 2008. However, the new law will not come into force before 2013 as a lot of organisational adaptations are necessary in the Cantons.
The main principle of the reformed law is to support the subject's right to choose (issue of advance directives, designation of a health care/welfare proxy) as well as to relieve the administrative and financial burden on the state. The new law will institute a standard instrument –"official assistance", or Beistandschaft – in place of standardized measures. If a person is no longer able to handle their own affairs as a result of mental disability, psychiatric disorder or similar debility and the support provided by family members, private volunteers or public services is insufficient, the authorities will in future be called upon to tailor a support package for that person. They must determine the tasks and roles to be fulfilled by the official assistant in accordance with the needs of the person concerned. The authorities can appoint a family member (or several) as “official assistant” (Beistand). In this case the family members will be granted certain privileges. For example, they will not have to produce inventories or submit periodic reports, as is the case with institutional assistants.
In addition, the revised legislation will also provide better protection to people without legal capacity who live in residential and/or nursing homes. A written care agreement must be concluded for these individuals in order to assure transparency about exactly what services are being provided and what costs are covered. It must also be stipulated under which conditions freedom of movement may be restricted.
Finally, the cantons will be obliged by law to monitor such residential and nursing institutions.
The revised legislation also provides for the protection of dignity and extends the legal protection assured to people living in care homes.
For more information (in English, French, German and Italian), please refer to:
Continuing powers of attorney
In Swiss civil law, it is possible to designate a representative. Article 32 of The Code of Obligations RV220 of 30 March 1911 states that the rights and obligations resulting from a contract made in the name of another person by an authorised representative fall upon that person (i.e. the person who is being represented). If, however, when the contract was made, the representative did not make his/her role clear, then the person being represented would not be liable for any credits or debts unless the other contracting party should have normally been aware of the circumstances or did not care whether s/he was making a contract with either of the other two parties.
If the powers have been explained to a third party by the person being represented, the extent of the powers is based on the information which was provided to the third party.
In practice, it is also possible to appoint a representative for the future (e.g. who acts when the person has lost his/her capacity of discernment. This is a measure comparable with the proxy in the new law.
Capacity in specific domains
Marriage, annulment and divorce
Every person who has reached the age of 18 and is not already married has the right to marry. A person who has been declared legally incompetent must obtain the authorisation of their guardian. If the guardian refuses consent, the person wishing to marry can appeal to the judge (article 94 of the Civil Code).
A marriage must be annulled if it is later found that one of the spouses lacked capacity at the time of the ceremony and has not since regained the necessary capacity (article 105 of the Civil Code).
A spouse can request divorce after having lived separately for two years or beforehand if there are serious reasons that are not of his/her doing, which render the continuation of the marriage intolerable (art. 114 to 115 of the Civil Code).
Article 136 (political rights) of the Constitution states that all Swiss men and women who have reached the age of 18 and are not subject to tutorship due to mental illness or “weakness of the mind” have political rights at federal level. They have the right to vote even if they lack the capacity of discernment.
It is further stated in the Electoral Law (Federal Act on Political Rights of 17 December 1976) that people are disqualified from voting and holding office on the grounds of insanity, deprivation of civil rights and guardianship (www.electionaccess.org, 2007).
Article 12 of the Civil Code states that any person in possession of their civil rights is capable of acquiring and making binding agreements (acquérir et s’obliger). According to article 13, adults who are capable of discernment can exercise their civil rights.
Adults who have not been deprived of the capacity to act with reason as a result of mental illness or other causes are considered under article 16 of the Civil Code as being capable of discernment in the sense of the civil law.
Acts carried out by people who are incapable of discernment are not considered legally binding (article 182), although there are exceptions which are defined by law.
People who lack legal capacity but have the necessary capacity of discernment are only held responsible for acts for which their legal representative gave consent. They do not need to obtain such consent to acquire free gifts or to exercise rights of a strictly personal nature (article 193 of the Civil Code).
If a transaction is made with a person lacking capacity in the period between the judgement being made (i.e. that the person is legally incompetent) and its publication in the relevant official journals, it is considered valid. This protects the rights of the other contracting party who presumably made the transaction in good faith.
Any person over the age of 18 can dispose of his/her possessions by means of a will (or testament) (art. 467 of the Civil Code). There are three possible ways to do this according to article 498: 1. by means of a public act, 2. written, signed and dated by the testator (known as the “testament olographe”) or 3. orally.
Article 501 stipulates that once the will has been dated and signed, the testator must declare before two witnesses, in the presence of a public officer (officier public), that s/he has read the will and that it contains his/her last wishes. The two witnesses then sign a document in which they certify that the testator made the declaration and seemed capable of making a will. S/he does not have to let the witnesses know the content of the will. Article 502 allows for the testator simply to declare to the public officer and two witnesses that the document (read by the officer) contains his/her wishes even if s/he has neither read nor signed it.
The “testament olographe” is a will which has been completely written, dated and signed by the testator him/herself. The cantons foresee the handing over of the document (either open or sealed) to the appropriate authorities responsible for dealing with such documents (article 505).
Finally, a will can be made orally if there are exceptional circumstances which justify this such as imminent death, an epidemic or war (article 506). The testator must declare his/her last wishes to two witnesses who are then responsible for drawing up a deed.
A testament can be annulled if it was made by a person who did not have the necessary capacity at the time it was made (article 519).
Article 411 of the Code of Obligations stipulates that any person who causes damage to someone else, whether this be deliberate or due to negligence or carelessness, has to repair it.
Even a person who lacks the capacity of discernment may be obliged to pay total or partial compensation for the damage that s/he has caused (article 54).
Article 193 of the Civil Code states that people who lack legal capacity but have the necessary capacity of discernment are responsible for any damage caused by their illicit acts.
However, according to article 333 of the Civil Code, the head of the family is responsible for any damage caused by minors, people with mental illnesses and those with “weakness of the mind” unless s/he can justify having kept an eye on them as was appropriate in the particular circumstances. S/he must take the necessary measures to ensure that a person with a mental illness or weakness of the mind does not expose themselves or other people to danger or damage. S/he is expected to apply to the competent authorities in order to arrange for the necessary measures to be taken.
Criminal responsibility in case of incapacity is dealt with in article 19 of the Swiss Penal Code RS 311.0.
It states that the author of a crime is not punishable if at the time it was committed s/he did not have the capacity to understand the illegal nature of his/her act or to behave in accordance with that understanding.
If the person who committed the crime only had reduced capacity, the judge may reduce the sentence. If there is any doubt concerning the responsibility of the author of the crime, the authorities or judge investigating the crime may, according to article 20, call for an expert assessment.
Last Updated: Wednesday 28 March 2012