What is a Power of Attorney Needed For?

With a Power of Attorney, you can designate one or more individuals who will represent you in the event of your incapacity to make judgments.

An illness, an accident, or age-related decline can render you unable to form your will or communicate it clearly, resulting in a permanent or temporary incapacity. A Power of Attorney allows you to proactively name one or more individuals who will ensure care and support (personal care), manage your income and assets (asset management), and/or make legally binding decisions on your behalf (representation in legal matters) if you become incapacitated.

If no Power of Attorney has been established before the onset of incapacity, the spouse or registered partner (including same-sex partners) is entitled to a statutory right of representation under certain conditions (Article 374, Paragraph 1 of the Swiss Civil Code). However, this statutory representation is limited to ordinary living conditions. For any other matters, consent from the Adult Protection Authority (KESB) is required. In other cases, the KESB appoints a (professional) guardian for the incapacitated person.

The Power of Attorney must be established while you are still capable of judgment. In this document, you can specify who should represent you in which matters and give instructions accordingly. The purpose of the Power of Attorney is to document your wishes in advance, ensuring they are known and can be implemented in the event of your incapacity.

Like a will, the Power of Attorney must be either handwritten in full, dated, and signed by you, or publicly notarized to be valid. It is important that the tasks assigned to the appointee are clearly defined, as unclear instructions will be interpreted by the Adult Protection Authority (Article 364 of the Swiss Civil Code).

You can modify or revoke the Power of Attorney at any time. Additionally, you have the option to register the existence of the Power of Attorney and its location at the civil registry office in a central database.

However, be careful! The Power of Attorney document does not automatically grant the appointed person the right to act. A formal decision by the KESB is always required, which confirms both the incapacity of the person who granted the Power of Attorney and appoints the designated representative. The KESB will assess whether the Power of Attorney was validly established, meaning that the grantor was capable of judgment at the time of creation, whether the required form was adhered to, if the appointed person is capable, suitable, and willing to fulfill the tasks specified, and whether any additional protective measures may be necessary (Article 363, Paragraph 2 of the Swiss Civil Code).

Establishing the Power of Attorney through a notary makes sense in the following cases:

• When there is a need for legal advice, particularly for self-employed individuals (consultation is typically included in the notarization fee).
• If there are difficulties in handwriting the Power of Attorney (disability, impaired vision, etc.).
• If multiple copies are needed, for example, to distribute to multiple representatives (only an original copy will be considered valid by the KESB; copies are not sufficient).

We offer all notarial services, including the public notarization of Powers of Attorney.

Lucerne, April 17, 2020

Simeon Beeler