Old Age: How to Decide in Advance How to Manage Your Assets

Summary of the article published in the daily newspaper “Le Temps” on 18 June 2012

Following the amendment to the guardianship law which came into force on 1 January 2013, everyone is free to take personal measures in advance by issuing an advance care directive for the management of their assets and a patient decree for the attention of medical professionals. Let us look at what these new provisions consist of:

Advance care directive

This involves entrusting a third party with the management of assets and/or the provision of personal support, but only in the event of a loss of capacity of judgement.

Any trusted person, family member, friend or professional representative (notary, lawyer, asset manager, etc.) may be appointed. This can even be a legal entity (a fiduciary, a family office, a bank).

When the time comes, the appointed third party is not obligated to accept the appointment but may reject it. Therefore, it would be prudent to include substitution clauses. The directive may contain details of the activity to be entrusted to the appointee, the manner in which the instructions are to be carried out and the remuneration of the appointee. The content can be adapted to all sorts of special cases.

This directive may be issued in one of two ways: in writing or by public deed before a notary. Both forms enable the client to register the directive with the civil register office so that its existence is known at the time of the onset of incapacity. In any event, the notarial deed signed by the notary shall be kept by the latter.

If a person is no longer capable of judgement, the guardianship authority shall verify the validity of the directive and the suitability of the appointee. If necessary, this authority shall provide the appointee with an official document attesting to his authority to represent the person and to carry out the directive given to him by the client.

Thereafter, the authority only intervenes occasionally as a supervisory authority. It should be noted that this directive is never permanent; rather, it ends as soon as the client regains his capacity of judgement.

What about persons who have not issued an advance care directive?

In the event of a loss of capacity of judgement, the law provides that the spouse (or registered partner in the case of same-sex couples) who still lives in the same household with the person in question and/or who regularly provides him with personal support holds a statutory power of representation. The unmarried partner, on the other hand, has no legal power of representation.

Patient decree

Patient decrees must be issued in simplified written form: the person must manually date and sign the document, whether typed or printed. These decrees may be kept by the person or, better still, entrusted to the person's doctor or another trusted person.

They are binding on the doctor unless they are contrary to the law (e.g. direct active euthanasia) or do not correspond to the free or presumed will of the patient. Any person close to the patient has the right to complain to the adult protection authority if they are not complied with or have not been freely established by the patient.

Patient decrees may be included in an advance care directive.

What about people who have not appointed someone to deal with their doctor on their behalf?

The spouse (or registered partner) has statutory right to act as a representative. An unmarried partner who lives in the same household also has power of representation. Children and grandchildren, fathers, mothers and siblings also enjoy such powers, insofar as they provide personal assistance.