Power of attorney & will

Who decides when you can no longer do it?

Overview of advance care directives and wills

An accident, an illness or a sudden death. Nobody expects it, but the consequences can be serious. Who can make decisions if you become incapacitated? Who receives your assets or shares in your company if you die? Without clear legal regulations, the court or the legal succession will decide in an emergency, with all the delays, uncertainties and possible conflicts.

With an advance care directive and a will, you can create clarity in good time. For your family and, if you are an entrepreneur, also for your company.

The advance care directive: securing your capacity to act

The advance care directive is a special disposition under Swiss law (Art. 360 ff. ZGB). It allows you to designate one or more persons who may act on your behalf in the event of your incapacity to make decisions.

Important contents of an advance care directive

1. Appoint a trusted person
   Decide on someone you trust completely and who is also prepared to take on the responsibility. It is best to discuss this with the person now to see if they are ready for this responsibility.
2. Define areas of responsibility
   An advance care directive can regulate three areas:
   • Personal care (e.g. medical issues, housing situation)
   • Property care (banking transactions, bills, contracts)
   • Representation in legal transactions (legally binding decisions, company management)
3. Communication and preparation
   Talk to the people involved: What is important to you? Where are relevant documents filed? What ideas do you have for personal and business decisions?
4. Clarify rights and duties
   Precautionary representatives must be aware of their future duties and the legal consequences.
5. KESB validation
   The advance care directive only comes into force when the child and adult protection authority (KESB) determines the incapacity and validates the mandate.

You can appoint one person for all areas or distribute tasks among different people. A legal entity (e.g. a bank) can also be appointed.

Formal requirements for the advance care directive

For it to be valid, it must either:

• be drawn up in your own hand (completely handwritten, dated and signed), or
• be publicly notarized (e.g. by a notary).

The will: clarity in the event of death

The will regulates who receives your assets and your company shares after your death.

Important points for private individuals and entrepreneurs

• Statutory succession
  Statutory succession applies without a will. This means that those entitled to a compulsory portion inherit jointly. This often happens without a clear solution for real estate, assets or company shares.
• Observe compulsory portions
  Spouses and children are entitled to compulsory portions. You can freely dispose of the remaining free portion. Since the 2023 revision of inheritance law, this free portion has been increased. This creates additional leeway.
• Clearly regulate succession
  Who should continue to run the company? Should heirs be compensated? What should be done with shares or participations? A will can help to avoid disputes and ensure the ability to act.

Mandatory shares and free quota since 2023

1. Children (descendants)
   • Compulsory portion: ½ of the statutory inheritance entitlement (previously ¾).
   • → This increases the free quota.
2. Spouse or registered partner
   • Compulsory portion: ½ of the statutory inheritance entitlement.
   • No change due to the revision.
3. Parents
   • In the past, parents also had compulsory portion rights.
   • No compulsory portion since 2023.

Concrete example

• Testator leaves behind Children, but no spouse:
  • Children together receive at least ½ of the estate (compulsory portion).
  • The other ½ (free quota) can be freely disposed of.
• Testator leaves behind Spouse + children:
  • Spouse compulsory portion: ¼
  • Children's compulsory portion: ¼
  • → bound together ½ of the estate → ½ freely available.
• Testator leaves behind only spouse, no children:
  • Mandatory portion spouse: ½
  • → ½ freely available.

Formal requirements for wills

• Handwritten will: completely handwritten, dated and signed.
• Public will: before a notary (e.g. notary public) with two witnesses.
• Oral will: only possible in emergency situations, in front of two witnesses; later it must be confirmed.
• Inheritance contract: publicly notarized, binds all parties and offers additional security, especially in complex family relationships.

Why are these instruments so important?

If there is no advance care directive or will, this may mean that

• Decisions are delayed by authorities or courts.
• Business obligations cannot be fulfilled.
• Company shares end up in communities of heirs who want to block or sell.
• Claims to compulsory portions withdraw capital and jeopardize liquidity.
• Families get into conflicts that could be avoided with clear rules.

Tips for practice

1. Check documents regularly: Changes in the family, finances or company require updates.
2. Create a clear filing system: Documents should be stored securely but be easy to find.
3. Consider an inheritance contract: Particularly useful in the case of multiple heirs or complex asset and company situations.
4. Use professional advice: Trustees, notaries or lawyers ensure that all formal requirements are met and that your objectives are implemented.

Conclusion

Whether private or business: an advance care directive and a will provide clarity in the event of an emergency. They ensure capacity to act, avoid disputes and protect both the private sphere and a company. Those who make provisions take responsibility. For yourself, for your family and for employees.

We will be happy to advise you personally and support you in drawing up your advance care directive.