Do married couples need an advance care directive?
Published on 08.03.2024 CET
This may be necessary so that you can make important decisions in an emergency without having to involve the Child and Adult Protection Authority
A lot of married couples assume that they will be able to represent each other in civil matters. This is true as long as the issue at hand relates to everyday affairs. But if your partner has lost his/her capacity of judgment, you won’t be able to represent them in important decisions. In this case, an advance care directive can make things a lot easier.
When you get married, many important decisions and the legal transactions resulting therefrom are made jointly —especially when it comes to planning for the future. However, it’s not always possible to make a decision alone that would normally be made as a couple.
- Is your spouse no longer capable of sound judgment due to health reasons?
In principle, you can act as their representative. However, it’s important to remember the following:
“The right of representation for married couples only applies to everyday matters.”
“Everyday matters” include things like paying rent and other regular bills or making repairs to a shared vehicle. This right of representation does not apply to major issues. In this case, an advance care directive gives you more room for maneuver.
What happens when there’s no lasting power of attorney in place?
Let’s say one spouse is no longer capable of sound judgment and their partner wants to sell their joint house. If you do not have an advance care directive in place, you’ll have to obtain permission from the Swiss Child and Adult Protection Authority (Kindes- und Erwachsenenschutzbehörde; KESB). Without this permission, any transaction is not legally binding.
This rule applies even if you’ve been married for a long time. If you want to avoid getting the KESB involved, it’s therefore advisable to have an advance care directive drawn up.
Legal matters that would only be possible with an advance care directive
You can be granted the right to act on behalf of the other person for everything from managing income to selling assets. This can be important, for example, if you want to renovate your home to increase its value or realign your joint securities portfolio.
If your life circumstances change, your planning requirements also change
When major life changes happen—whether that’s marriage, children or a new career—it’s worth reviewing your estate planning and adjusting it if necessary. We would be happy to help you take the necessary steps at the right time.
You can be authorized to conclude and terminate contracts in the name of the other person or represent them in dealings with official bodies, courts and insurance companies.
An advance care directive gives you the right to consent to care or medical treatment. You can also set out the latter in a living will.
How can I draw up an advance care directive?
How many rights you grant to each other is up to you. For example, you can stipulate that, in the event of your incapacity, you appoint your spouse or another person to represent you fully in all matters. This means that the appointed person can make all your decisions for you.
On the formalities side of things, an advance care directive must be written by hand and be dated and signed. Alternatively, you can have it notarized.
