An intermediate solution to the general power of attorney
Report :
- With the evolution of medicine, life expectancy always lengthens a little more, on the physical level, but this evolution rarely follows the same curve on the mental level.
- After a certain age, loss of memory and other mental faculties become commonplace.
- The problem lies in the fact of no longer having the ability to realize it when it happens and not necessarily wanting to give immediate “general power of attorney” to these heirs or advisers when the ideas are still clear.
- The need for future protection being obvious, the mandate on grounds of incapacity represents a good intermediate solution.
Mandate due to incapacity
A power of attorney is a legal document with which you can settle your representation in case of incapacity to discern . You will thus avoid a curatorship instituted by the State .
The mandate for reason of incapacity was introduced with the new law on the protection of adults in 2013 and constitutes an essential element of legal foresight.
Before drafting a mandate on grounds of incapacity, it is first necessary to understand what incapacity of discernment is.
What is the incapacity of discernment?
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 his young age, mental deficiency, psychic disorders, drunkenness or other similar causes, is capable of discernment within the meaning of this law.
Loss of ability to discern can be temporary or long-term . A temporary loss of judgment can occur, for example, after an accident or as a result of drug addiction. Typical cases of permanent disability are dementia or severe mental handicaps.
Who decides on the inability to discern?
The inability to discern 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 ) is responsible for assessing capacity. One of the main tasks of the APEA is to decide on the measures to be taken to protect or support a person who has become incapable of discernment.
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, have an obligation to inform the APEA.
If no report is received by the APEA , the latter will take no action.
When does a mandate for incapacity come into effect?
The mandate due to incapacity is not valid immediately after it is drawn up, but only in the event of incapacity for discernment, noted by the authority for the protection of children and adults (APEA). The APEA must examine and validate the mandate for reason of incapacity. It is only then, if the mandate is validated by the APEA, that the mandate due to incapacity comes into force.
What is the difference between a power of attorney due to incapacity and a general power of attorney?
The power of attorney is valid as soon as it is signed, whereas the mandate due to incapacity is valid only after the occurrence of the incapacity to judge and its observation by the APEA .
In addition, banks generally no longer recognize powers of attorney after the onset of incapacity.
What is the difference between a mandate for incapacity and an advance directive?
In case of incapacity of discernment, the advance directives regulate the medical measures . The mandate for reason of incapacity regulates personal, financial and legal questions. In the absence of advance directives, the mandatary designated in the mandate for reason of incapacity for personal assistance decides on the medical measures.
What form should a mandate for incapacity take?
The mandate due to incapacity is subject to a strict formal requirement. It must be either written and signed entirely by hand , or authenticated by a notary. Authentication is especially recommended if the person concerned is not able to write himself.
Mandate due to incapacity – General
Or drop it:
Keep your money order somewhere easy to find, ideally with other important documents.
Give a copy to the agent and inform him of the place where you deposited the original.
We recommend that you register the constitution and the place of filing of your power of attorney due to incapacity in the civil status register of your municipality. Some cantons also offer the possibility of filing the mandate with the adult protection authority.
What does the mandate on grounds of incapacity contain?
The mandate due to 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 proxy?
Family members are often designated, especially (adult) children. In some cases, however, this is not possible or is not desired – both by the principal and by the agents. The following conditions must be met:
Agents must have sufficient expertise. Even though they are allowed to use attendants, they take responsibility for your entire life and finances.
- Representatives must be flexible and available: they must have the necessary time to take care of everything and be able to get there quickly. If your children are already very involved in their private and professional life or live too far away, this could become problematic in the long term.
- When examining the mandate on grounds of incapacity, the authority for the protection of children and adults (APEA) attaches importance to ensuring that there are as few conflicts of interest as possible. . Depending on the situation, mandating an heir can therefore become debatable. For this reason, under no circumstances should you appoint as proxy a person who already manages your assets (banks, asset managers or trustees). Serious financial service providers refuse to be named as mandatary in a mandate due to incapacity.
- The liability of a mandate due to incapacity can last for years, even decades. Your agents should therefore be younger than you.
Where can I file a mandate due to incapacity?
- You are free to choose where you file your mandate due to incapacity .
- The most important thing is that it is easy to find.
- The authority for the protection of children and adults (APEA) does not bother to seek a warrant for reasons of incapacity in the event of a report.
- We therefore strongly advise against depositing your money order in a safe, in a bank or other.
- However, the APEA is obliged to check in the register of the civil status office whether a mandate for reasons of incapacity has been entered.
- We therefore recommend that you register your mandate due to incapacity with the civil status office of your place of residence.
- Please note that you cannot file the mandate at the civil status office. However, you can indicate the place of filing on the form provided to you by the civil status office.
12/2022
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