An intermediate solution to the general power of attorney
Report :
- With the evolution of medicine, life expectancy is constantly increasing, on a physical level, but this evolution rarely follows the same curve on a mental level.
- After a certain age, memory loss and other mental faculties become commonplace.
- The problem lies in no longer having the capacity to realize it when it occurs and not necessarily wanting to give immediate "general power of attorney" to these heirs or advisors when ideas are still clear.
- Given the obvious need for future protection, a power of attorney for incapacity represents a good interim solution
Mandate for incapacity
A power of attorney for incapacity is a legal document that allows you to arrange your representation in the event of incapacity to make decisions . This will prevent you from being placed under state guardianship .
The mandate for incapacity was introduced with the new law on the protection of adults in 2013 and constitutes an essential element of legal provision.
Before drafting a mandate for incapacity, one must first understand what incapacity for discernment is.
What is the inability to make sound judgments?
The Swiss Civil Code defines the capacity for discernment as follows: "Any person who is not deprived of the ability to act reasonably because of their young age, mental deficiency, mental disorders, intoxication or other similar causes, is capable of discernment within the meaning of this law.
Loss of judgment can be temporary or long-term . A temporary loss of judgment can occur, for example, after an accident or as a result of drug abuse. Typical cases of permanent incapacity include dementia or severe mental disabilities.
Who decides on the incapacity of discernment?
Incapacity for judgment is rarely total and must be assessed individually.
Since the introduction of the new Adult Protection Act in 2013, the Child and Adult Protection Authority ( APEA ) has been responsible for assessing capacity. One of the APEA's main tasks is to decide on the measures to be taken to protect or support a person who has become incapable of making decisions.
The APEA assesses cases after receiving a report.
Anyone can send a report to the APEA. Certain authorities, such as the police or social services, are required to inform the APEA.
If no report reaches the APEA , the latter will not take any action.
At what point does a mandate for incapacity come into effect?
A power of attorney for incapacity is not valid immediately upon its creation, but only in cases of incapacity for decision-making, as determined by the Child and Adult Protection Authority (APEA). The APEA must review and validate the power of attorney for incapacity. Only then, if the power of attorney is validated by the APEA, does it come into effect.
What is the difference between a mandate for incapacity and a general power of attorney?
The power of attorney is valid from the moment it is signed, whereas the mandate for incapacity is only valid after the occurrence of the incapacity to judge and its finding by the APEA .
Furthermore, banks generally no longer recognize powers of attorney after the onset of incapacity.
What is the difference between a power of attorney for incapacity and advance directives?
In the event of incapacity, advance directives govern medical care . A power of attorney for incapacity governs personal, financial, and legal matters. In the absence of advance directives, the representative designated in the power of attorney for incapacity for personal assistance decides on medical care.
What form should a power of attorney for incapacity take?
A power of attorney for incapacity is subject to strict formal requirements. It must either be handwritten and signed entirely by hand , or notarized. Notarization is particularly recommended if the person concerned is unable to write themselves.
Mandate for incapacity – General information
Or drop it off:
Keep your mandate in an easy-to-find place, ideally with other important documents.
Give a copy to the agent and inform them of where you deposited the original.
We recommend that you register the establishment and location of your power of attorney for incapacity in the civil registry of your municipality. Some cantons also offer the option of filing the power of attorney with the adult protection authority.
What does a power of attorney for incapacity contain?
The mandate for incapacity is divided into three areas: personal assistance, asset management, and legal representation . However, legal representation is always linked to personal assistance and asset management.
Who should I appoint as my representative?
Family members are often designated, particularly (adult) children. In some cases, however, this is not possible or desired – either by the principal or the agents. The following conditions must be met:
Representatives must have sufficient expertise. Even if they are allowed to use assistants, they assume responsibility for your entire life and finances.
- Representatives need to be flexible and available: they must have enough time to handle everything and be able to travel there quickly. If your children are already very involved in their personal and professional lives or live too far away, this could become problematic in the long run.
- When reviewing a power of attorney for incapacity, the Child and Adult Protection Authority (APEA) prioritizes minimizing conflicts of interest. Depending on the circumstances, appointing an heir as your representative may be problematic. Therefore, you should never designate someone who already manages your assets (banks, wealth managers, or trustees) as your representative. Reputable financial service providers refuse to be appointed as representatives in a power of attorney for incapacity.
- The responsibility of a power of attorney for incapacity can extend over years, even decades. Your representatives should therefore be younger than you.
Where can I file a power of attorney for incapacity?
- You are free to choose where you file your power of attorney for incapacity .
- The most important thing is that it's easy to find.
- The Child and Adult Protection Authority (APEA) does not bother to seek a mandate due to incapacity in the event of a report.
- We therefore strongly advise against depositing your money order in a safe, bank or elsewhere.
- However, the APEA is required to check in the register of the civil status office whether a mandate for incapacity has been registered.
- We therefore recommend that you register your mandate for incapacity with the civil registry office of your place of residence.
- Please note that you cannot file the mandate document at the civil registry office. However, you can indicate the filing location on the form provided by the civil registry office.
12/2022
Do not hesitate to contact us to discuss it
