Switzerland
vulnerable persons In Suisse
Adults
1 -Does your legal system provide for lasting powers of attorney for persons who wish to nominate someone close to them as their guardian in case of loss of legal capacity owing to an accident or illness?
Yes. Swiss law was amended on January 1st 2013. Articles 360 and subsequent articles of the Swiss Civil Code civil were introduced on that date and allow anyone, capable of discernment, to nominate a guardian in case of inability to discern. This is referred to as “power of attorney on grounds of loss of legal capacity”.
- The measures covered are the following:
Personal care, management of assets and representation in legal relations.
- The persons who can be appointed
Persons and legal entities.
- Supervision
There is no supervision of the guardian, unless the interests of the person under guardianship are undermined.
- Substitution
The guardian cannot be substituted.
- Lasting power of attorney replacing judicial measures for the protection of an adult
The lasting power of attorney replaces these judicial measures in case of loss of capacity of an adult. However, the Adult Protection Authority may adopt additional adult protection measures (363 para 4 SCC).
- Effects before the loss of capacity and after death of the lasting power of attorney
The lasting power attorney does not produce any effects prior to the loss of capacity. It expires automatically when the guardian passes away.
- Form
The lasting power attorney has to be made either in the holograph or authentic form (art. 361 SCC).
- Mandatory or optional recording in a register
Recording in the civil status register (register kept by the State) or in the register of wills and lasting power attorneys (register kept by notaries) is optional. There is no obligation to record it in a register in order to be valid. Recording is only necessary for the notification of the lasting power attorney.
2 - Does your legal system provide for an advance decision on medical treatment for persons who, as a result of an accident or illness, are no longer able to express their wishes with regard to undergoing or refusing medical treatment?
Yes. These are advance decisions introduced on the same date in the SCC under article 370 and subsequent articles.
- Measures covered
Advance decisions help establish the medical treatments which a person may agree to or not, if he/she becomes incapable of discernment.
- Judicial supervision
There is no systematic judicial supervision. However article 373 SCC establishes that someone close to the patient may appeal to the adult protection authority if advance decisions are not complied with or the patient’s interest are harmed or if the advance decisions are not the expression of his/her free will.
- Binding effect of advance decisions for medical staff and the patients representatives
Yes, advance decisions are binding on medical staff, excluding emergency cases or if advance decisions are unlawful.
- Form of advance decisions
Advance decisions must be formulated in writing. They have to be signed and dated by the patient.
- Recording in a register
The patient may record on his/her health insurance card that he/she has made advance decisions and where these have been deposited.
- Regulations to resolve any conflicts between advance decisions and the donation of organs by the patient
No, there are no such rules as far as I know.
3 - Does your legal system provide for the right to request that a trusted person be named as guardian in case of future incapacity?
No. The Swiss legal system provides for 3 cases:
- Lasting power attorney due to incapacity, i.e. an advance personal measure made voluntarily by the future incapacitated person, who adopts it when he/she is still capable of discernment.
- Measure adopted by the authority: the adult protection authority assures assistance and protection of persons in need of help. It is therefore a guardianship measure adopted by the authority and not “private” guardianship.
- Legal representation by the spouse. Article 374 SCC lays down the following: “When a person, incapable of discernment, has not made a lasting power attorney on grounds of incapacity and can therefore not be represented by a guardian, his/her spouse or partner has legal powers of representation, if they live together or if the spouse/partner provides personal care on a regular basis.
If no:
- Why does the Swiss legal system not provide for advance decisions?
The Swiss legal system provides for advance decisions regulating medical treatment. This does not concern the designation of a guardian, but rather instructions for the treating physician.
- Why does the Swiss legal system not provide for powers of attorney?
A personal measure resulting from a voluntary act can only concern the designation of a guardian (“mandataire”), in accordance with article 360 and subsequent articles of the SCC, or a special protection guardian which the law refers to as “guardian appointed on grounds of incapacity” discussed under question 1 above.
The term “guardian” (curateur) refers to a person appointed by the Adult Protection Authority. Under Swiss law there is no private guardianship.
The Swiss lawmaker believes that the three measures of protection (lasting power attorney on grounds of incapacity, guardianship established by the authority and representation by the spouse) are sufficient.
4 - Which authority has international, territorial and material jurisdiction to appoint legal guardians?
The Cantons are responsible for the organisation of civil justice (contentious and non-contentious). So, in Switzerland there are 26 different Justice systems. The adult protection authority is related to non-contentious justice.
Non-contentious justice is administered by professional judges or lay judges depending on the Canton (in Valais, the judge is a judge of the ‘Commune’ as in the Canton of Jura. In the Canton of Vaud, it is the Justice of the Peace, i.e. professional judges).
The competent authority is the adult protection authority of 1st instance in the place where the vulnerable person is domiciled, regardless of whether this person is Swiss or a foreigner.
5 - Is it usual practice to appoint several guardians, to deal with different matters (custody rights, administration of assets, etc.)?
No. As a general rule, the adult protection authority appoints one guardian only. However, there are different types guardianship, thus making it possible to adapt protection measures to the needs of protected persons.
6 - To what formal and material restrictions are legal guardians subject? Specifically, must they be officially approved? Must they have authorization from a court or authority to carry out certain legal acts?
A legal guardian has to submit accounts (balance sheets, logbook and budget) at the end of each calendar year or at the end of his/her lasting power attorney, as the case may be. The adult protection authority either approves or rejects the accounts. Legal transactions, such as taking out loans, a life annuity and the purchase or sale of real estate require the consent of the Adult Protection Authority, unless the protection measure (guardianship) leaves the protected person full active civil capacity.
7 - Under the conflict-of-law rules in force, what substantive law is applicable to:
- lasting powers of attorney? law of domicile. If domiciled in Switzerland, Swiss law
- advance decisions to refuse treatment? same
- requests made with regard to the guardian and/or circumstances of a guardianship?
All substantive, judicial and administrative matters are handled pursuant to the Hague Convention of 13th January 2000 on the international protection of adults (HC).
This international convention was approved by the Federal Assembly on 21st December 2007 and came into force on 1st July 2009.
Under what condition are the following foreign documents recognised in your Member State?
Switzerland has no reserves or conditions that apply to the recognition of foreign decisions within the framework of adult protection.
Minors
1 - Is your country party to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children, which was concluded on 19 October 1996? If so, at what date did it enter into force?
Yes, Switzerland ratified this Convention in 2007 and it came into force on 1st July 2009.
- Law applicable to questions of custody and legal representation of minors
In general, the HC96 provides for the application of the law in force in the State where the competent authorities are found, pursuant to art. 15 para 2 of the HC which establishes that the competent authorities may decide to apply or take into consideration the law of another country, when the protection of the individual or the child’s assets require it.
- Which authority has international and territorial jurisdiction concerning questions of custody?
In principle, the authority having jurisdiction is the one of the child’s habitual residence, in accordance with the HC.
- Which authority has international and territorial jurisdiction concerning questions of representation?
In principle, the authority having jurisdiction is the one of the child’s habitual residence, in accordance with the HC.
2 - Up to what age is a person considered to be a minor? Are there different levels of legal capacity for minors (e.g. limited legal capacity)?
A person becomes of age at 18 (art. 14 SCC). Thus, a person is considered a minor until he/she turns 18.
Providing a minor is capable of discernment however, he/she may dispose of some assets (separated assets). These include assets:
- made available to the minor by his/her legal representative (parents or custodian) or by third parties;
- made available to the minor in order to exercise a profession or trade;
- resulting from a salaried job or self-employment.
2.1 Extending the legal capacity of a minor (marriage) in some cases
A minor capable of discernment may conclude some transactions listed under article 19 of the SCC. Namely:
- He/she may acquire rights on a purely free-of-charge basis (donation, receive a non-binding offer, accomplish an action interrupting time limitation, etc.)
- He/she may deal with minor, everyday-life matters (purchase of food, train or cinema tickets, etc.)
- He/she may exercise his/her strictly personal rights.
However, the law provides for some restrictions regarding the exercise of these rights by the minor alone. These exceptions require the consent of the legal representative (engagement, marriage contracts, recognizing a child, for example) or prohibit the accomplishment of an act (will, inheritance agreement, sterilisation).
2.1.1. Subordination of this extension to a court decision
Extending the minor’s civil capacity is not subordinated to a court decision.
2.1.2. List of transactions
Cf. 2.1 above
3 - Who has the general right of custody of a minor ?
The two parents (father and mother) together are the only ones who have the right of custody, if married. In this case, the right of custody is exercised jointly.
When the mother is not married to the father, then the mother has the right of custody, unless the parents have signed a written statement to hold custody jointly.
When both the father and mother have the right of custody, third parties in good faith may assume that each parent acts with the consent of the other.
In case of divorce or separation (unmarried couple), the judge may assign the right of custody to only one parent or to both jointly.
If the parent having the right of custody is placed under general legal guardianship, he/she automatically loses the right of custody that is assigned either to the other parent or a custodian.
Furthermore, the child protection authority may deprive one or both parents of the right of custody (grave dereliction of duty, infirmity, sickness, absence of one parent). If both parents are deprived of the right of custody, the child protection authority appoints a custodian.
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What is the scope of the right of custody
The scope is broad. The person having the right of custody chooses the child’s name, place of residence and represents him/her in all legal transactions, excluding those where the minor may act individually or those where the minor acts with the consent of the person having the right of custody (cf. article 19 SCC, described under section 2.1 hereinabove). - Custodian-designating authority
It is the child protection authority. The organisation of justice, but contentious and non-contentious, is left to the Cantons under Swiss law. As a result, the authority will not always be the same from one Canton to another. In the Canton of Vaud, it is the Justice of the Peace.- On whose proposal and when is the decision on appointment of custody made?
The Child Protection Authority adopts the necessary measures to protect a child if his/her development up is threatened. It appoints a custodian that it chooses. - Is the competent authority free in its choice of a new custodian?
Yes, the competent authority is sovereign, subject to the right of appeal against its decisions. - Can the right of custody belong to several persons?
Yes. The married father and mother have joint custody, whilst unmarried parents may declare they wish to exercise it jointly. - Appointment of several custodians?
The law provides for the appointment of only one custodian for all the transactions involving the minor.
- On whose proposal and when is the decision on appointment of custody made?
- Disagreement of the parents regarding the right of custody
It is necessary to distinguish several situations:- Married couple: both parents have the right of custody, unless one of them is subject to an adult protection measure or has been deprived of the right of custody by the Child Protection Authority (mistreatment, incapacity, etc.)
- Divorced parents : the divorce judge assigns the right of custody either to one or to both parents. The judge alone decides on the foregoing assignment, taking the child’s interest into due account.
- Unmarried parents: the right of custody is assigned to the mother, unless both parents make a written statement and providing the father has recognised the child or that parentage has been acknowledged by means of a court decision
- Transferring the right of custody by means of a power attorney
Under Swiss law, the right of custody cannot be transferred.
4 - Who has the general right of legal representation of a minor?
The two parents, i.e. those having the right of custody. In case of divorce or separation, the parent(s) who has/have been assigned the right of custody.
4.1. Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity)?
The child protection authority assigns the right of custody to the other parent if the parent having said right is unable to act (death or placed under guardianship for example). If both parents are unable to act, the child protection authority appoints a custodian.
4.1.1 On whose proposal and when is the decision on appointment of a legal representative made?
The relatives or the social services in charge of the child’s protection a submit a proposal. The decision is delivered in the following 15 days or month.
4.1.2. Is the competent authority free in its choice of a new legal representative?
Yes, the competent authority is sovereign, subject to the right of appeal against its decisions.
4.1.3. Possibility of appointing several representatives?
No, the law provides for the appointment of only one custodian.
4.2. Is the legal representative’s right to represent the minor subject to somerestrictions or to other rules?
4.2.1. Are there some areas in which a legal representative is not competent to act?
A minor capable of discernment may accomplish some transactions himself/herself (art. 19 and subsequent articles SCC). These include:
- He/she may acquire rights on a purely free-of-charge basis (donation, receive a non-binding offer, accomplish an action interrupting time limitation, etc.)
- He/she may deal with minor, everyday-life matters (purchase of food, train or cinema tickets, etc.)
- He/she may exercise his/her strictly personal rights.
- However, the law provides for some restrictions regarding the exercise of these rights by the minor alone. These exceptions require the consent of the legal representative (engagement, marriage contracts, recognizing a child, for example) or prohibit the accomplishment of an act (will, inheritance agreement, sterilisation).
4.2.2. Connection between the right of custody and representation rights
Having the right of custody includes the right to represent the minor. If custody is held jointly, then it has to be exercised jointly. However, the Civil Code provides for protection of bona fide third parties who may assume the consent of the other parent.
4.2.3. Requirement that all legal representatives conclude transactions jointly
With the exception of the protection of bona fide third parties, as mentioned under section 4.1.2. hereinabove, all legal representatives must act jointly.
4.2.3.1. List of legal transactions that a legal representative may perform on behalf of the minor, if he/she is acting alone.
If there are several legal representatives, they have to act jointly. In this case, it is the child’s parents (married or unmarried).
4.2.3.2. List of legal transactions into which legal representatives may enter on behalf of the minor only jointly.
With the exception of the protection of bona fide third parties who may assume the consent of the other parent, if the parents hold the right of custody jointly, they always have to act jointly.
4.2.3.3. Requirement of joint representation in case the parents have never been married.
Basic rules do not vary, regardless of the decision to be made. It is necessary to know who has the right of custody, regardless of whether the parents are married or not. Marriage does not change the basic rules.
- Married couple: both parents have the right of custody, unless one of them is subject to an adult protection measure or has been deprived of the right of custody by the child protection authority (mistreatment, incapacity, etc.). So, even when a child has a married father and mother, it could be that one of the two has been deprived of the right of custody.
- Divorced parents: the divorce judge assigns the right of custody either to one or to both parents. The judge alone decides on the foregoing assignment, taking the child’s interest into due account. Only the divorce judgment or a further court decision modifying this point of the divorce judgment attests to the assignment.
- Unmarried parents: the right of custody is assigned to the mother, unless both parents make a written statement and providing the father has recognised the child or that parentage has been acknowledged by means of a court decision. Without this written statement, the child of an unmarried couple is under the custody of the mother.
4.2.4. Restrictions applying to legal representatives
Neither the father or mother, nor the custodian can provide sureties, set up foundations or make donations on behalf of the child, with the exception of habitual gifts.
A legal representative, be it the father or mother, may have a conflict of interest with the child in a succession for example, when it comes to mortgaging or selling property owned jointly by the child and one of the parents.
In cases of conflict of interest, the Child Protection Authority appoints a guardian having a specific mission. This guardian will have to contact the Adult Protection Authority to carry out the transactions listed under art. 416 SCC (dispose of immovable property or other assets, pledge these assets, encumber them with usufruct, take out or grant a loan, etc.), as if the child were an adult subject to protection measures.
4.3. Other restrictions for the persons who have the right of custody or of legal representation of a minor.
No.
4.4. Transferring the right of representation of a minor to another person by means of a power attorney.
No, this is not envisaged under Swiss law.
5 - How can the custodian/representative prove his/her rights?
- parents : if married, then they are the legal representatives; a family certificate may be needed to prove parentage.
- divorced parents: the final and enforceable divorce judgment will serve as proof of the right of custody or any other court decision modifying the divorce adjudication.
- the custodian provides evidence of his/her appointment by the adult protection authority.
6 - According to the national law, who is responsible for giving consent/permission/authorization for a minor child to travel abroad, in the event both parents are not travelling with the child(e.g. one parent, both parents, the guardian, institution, please specify)
The person having the right of custody.
If the parents are married, both hold the right of custody jointly.
If the parents are divorced and both have the right of custody (jointly), then both parents.
If the parents are divorced, but only one has the right of custody, then that parent.
If the parents have been deprived of the right of custody that has been assigned to a third party (custodian), then the child’s custodian.