With a power of attorney, you can designate who should represent you if you become legally incompetent. Without a power of attorney, the guardianship authority (KESB) usually assigns this task to a professional guardian.
An illness, accident, or even old age can lead to a situation where you are unable to form your will or communicate it understandably, meaning you may be permanently or temporarily legally incompetent. With a power of attorney, you can choose your representative in the event of legal incompetence.
If a power of attorney is not established before the onset of legal incompetence, the adult protection authority appoints a (professional) guardian for the legally incompetent person.
According to the law, the spouse or registered (same-sex) partner has a limited right of representation, provided that neither a power of attorney nor a guardianship exists (Art. 374 Para. 1 of the Swiss Civil Code). This statutory right of representation is limited to ordinary household affairs, meaning it only covers the following:
- Actions typically necessary to meet maintenance needs;
- Ordinary management of income and other assets; and
- If necessary, the authority to open and handle mail.
Therefore, if you want to determine who will take care of your personal matters, assets, and legal transactions in the event of legal incompetence, you should establish a power of attorney.
A power of attorney is particularly sensible in the following situations:
- You have significant shares in a company or are even the sole owner.
- You own real estate (especially in joint ownership or community ownership).
- You have assets held in joint ownership with third parties (e.g., spouse, partner, siblings, etc.).
- You have assets that require special knowledge for their management/care (e.g., investments, art collections).
- You have pets whose care or housing you do not wish to leave to someone else.
For more information on the power of attorney, you can find further details here (Why do we need a power of attorney?). We are happy to assist you with advice related to and/or the public certification of powers of attorney.
Lucerne, October 28, 2020
Simeon Beeler
