Mandate for incapacity vs advance directives: the differences
Introduction
No one likes to imagine the day when they will no longer be able to decide for themselves. Yet anticipating this eventuality protects both your interests and your loved ones. Swiss law offers two essential instruments: the mandate for incapacity and advance directives. Although complementary, these documents address different needs.
The mandate for incapacity allows you to designate a trusted person to manage your administrative, financial and personal affairs if you lose your capacity for discernment. Advance directives, on the other hand, express your wishes concerning medical treatment at the end of life.
Many people confuse these two mechanisms or are unaware that they can coexist. This confusion can have significant consequences: a guardianship imposed by the APEA in the absence of a mandate, or medical decisions taken without knowing your wishes. This article clarifies the differences between these adult protection tools, their legal form, their activation and their storage. You will thus know how to use them to preserve your decision-making autonomy.
📌 Summary (TL;DR)
The mandate for incapacity organises the management of your administrative and financial affairs in the event of loss of capacity for discernment. Advance directives express your choices concerning medical treatment at the end of life. These two documents are complementary, drafted in holographic or notarised form, and can be registered with the civil registry. They avoid intervention by the APEA and guarantee that your wishes are respected.
📚 Table of contents
- Mandate for incapacity: definition and function
- Advance directives: definition and function
- The key differences between mandate and directives
- Drafting and legal form
- Registration and storage
- The role of the APEA and guardianship
- Can you have both documents?
- Modification and revocation
- Practical advice for anticipating
Mandate for incapacity: definition and function
The mandate for incapacity is a legal document provided for by the Swiss Civil Code (articles 360 et seq.). It allows you to designate one or more trusted persons who will manage your affairs if you lose your capacity for discernment.
This mandate covers a wide scope: banking management, property transactions, administrative correspondence, decisions concerning your accommodation or your insurance. It is a planning tool that guarantees that your interests will be defended by someone you have chosen.
The mandate only comes into force when your incapacity for discernment is medically established. As long as you are capable, you retain full control of your affairs.
Advance directives: definition and function
Advance directives, also called a living will, are defined in articles 370 et seq. of the Swiss Civil Code. They concern exclusively your medical choices at the end of life.
This document allows you to express your wishes concerning resuscitation, aggressive treatment, palliative care or organ donation. Unlike the mandate for incapacity, advance directives do not affect your assets or your administrative affairs.
They guide doctors when you can no longer communicate your wishes. To learn more about this subject, consult our detailed article on the living will and advance directives.
The key differences between mandate and directives
The mandate for incapacity and advance directives address distinct needs. Although both are activated in the event of loss of capacity for discernment, they cover completely different areas.
Understanding these differences allows you to choose the right tools to protect your interests and respect your wishes. Here are the main distinctions to remember.
Scope of application
Mandate for incapacity:
Management of your bank accounts and investments
Property transactions (sale, rental, maintenance)
Correspondence with insurance companies and administrations
Decisions concerning your accommodation and your daily life
Advance directives:
Medical decisions (treatments, interventions)
End-of-life choices (resuscitation, palliative care)
Organ and tissue donation
Refusal of certain treatments or medical procedures
Time of activation
Both documents come into force upon your loss of capacity for discernment, but according to different procedures.
The mandate for incapacity requires validation by the Adult and Child Protection Authority (APEA). This authority verifies that the conditions are met and that the mandatary can carry out their mission.
Advance directives are consulted directly by the medical staff during urgent therapeutic decisions. No administrative validation is required: your wishes apply immediately.
Persons concerned
In the mandate for incapacity, you freely designate one or more mandataries. This may be a family member, a close friend or a professional (lawyer, fiduciary). This person will act on your behalf for all administrative and financial matters.
Advance directives do not provide for a mandatary as such. However, you can designate a therapeutic representative who will dialogue with the doctors and ensure that your medical wishes are respected.
These two roles are distinct and complementary.
Drafting and legal form
Swiss law imposes precise formal requirements to guarantee the validity of these documents. Complying with these rules is essential for your wishes to be recognised and applied.
The formalities differ according to the type of document. Here is what you need to know for each.
Form of the mandate for incapacity
Two options are available to you:
Holographic form: write the mandate entirely by hand, date it and sign it. This solution is free but requires clear and precise drafting.
Notarised authentic deed: a notary drafts the document according to your instructions. This option guarantees legal validity and avoids ambiguities, but it has a cost.
Templates for mandates for incapacity exist to guide you. Whatever form you choose, the clarity of your instructions is paramount.
Form of advance directives
Advance directives benefit from great freedom of form. No strict formalism is imposed by law.
You can write them by hand, type them or use an official form (Swiss Red Cross, Pro Senectute, FMH). The essential thing is that they are dated and signed by your own hand.
Draft them clearly to avoid any ambiguity. You can draw them up alone or with the help of your treating doctor. Remember to update them regularly so that they reflect your current wishes.
Registration and storage
Drafting these documents is not enough: they must be accessible when needed. A mandate or directives that cannot be found are useless.
Here is how to ensure that your documents will be found and applied when the time comes.
Registration with the civil registry
You can register your mandate for incapacity and your advance directives with the civil registry office of your domicile. This registration is not compulsory, but it is strongly recommended.
In an emergency, the authorities and doctors will thus be able to quickly find your documents. The procedure is simple and the cost remains modest, although variable according to the cantons.
Registration with the civil registry constitutes additional security for you and your loved ones.
Where to keep the originals
Keep the original of your documents in a safe place, but accessible. Avoid the safe whose combination no one knows.
Give a certified true copy to your designated mandatary, to your treating doctor and to a trusted relative. Inform several people of the existence of these documents and their location.
In an emergency, this simple organisation can make all the difference. Your wishes will be respected because they will be known.
The role of the APEA and guardianship
The Adult and Child Protection Authority (APEA) intervenes differently depending on the document concerned.
For the mandate for incapacity, the APEA validates the document and monitors its execution. It ensures that the mandatary acts in your interest and respects your instructions.
For advance directives, the APEA does not generally intervene, except in the event of conflict or doubt about their validity.
Without a mandate, the APEA may institute a guardianship: a person designated by the authority will manage your affairs. Anticipating with a mandate allows you to choose this person yourself.
Can you have both documents?
Yes, and it is even strongly recommended. The mandate for incapacity and advance directives are not mutually exclusive: they are complementary.
The mandate covers your administrative and financial affairs. Advance directives express your medical choices. Together, they offer complete protection of your interests and your wishes.
Ensure consistency between the two documents. Ideally, the people you designate (mandatary and therapeutic representative) must be able to communicate and coordinate their actions in your interest.
Modification and revocation
You can modify or revoke these documents at any time, as long as you retain your capacity for discernment.
For the mandate for incapacity, respect the same formalism as for its creation: holographic form (handwritten, dated, signed) or notarised deed.
For advance directives, simply destroy the old document and draft a new one, dated and signed.
Review these documents every 3 to 5 years or when significant changes occur: relocation, divorce, death of the designated mandatary. Your wishes evolve with your life.
Practical advice for anticipating
Do not wait until you are ill or weakened to draft these documents. Anticipate whilst you are in full possession of your faculties.
Discuss your wishes with your loved ones and the people you designate. Ensure that they accept these responsibilities and understand your expectations.
If in doubt, consult a notary or legal adviser. Inform your treating doctor of the existence of your advance directives.
This administrative and medical planning is part of a comprehensive approach, in the same way as succession planning. Protecting your interests today means relieving your loved ones tomorrow.
The mandate for incapacity and advance directives are two complementary tools that address distinct needs. The former protects your financial and personal interests by designating a trusted person to manage your affairs if you are no longer able to do so. The latter guarantee that your medical wishes at the end of life are respected.
These documents do not conflict, they complement each other. Having both ensures you comprehensive protection: your finances, your accommodation and your daily life are taken care of according to your wishes, whilst your care choices are respected. It is an act of planning that relieves your loved ones of difficult decisions at already trying times.
Take the time to reflect on these questions, to discuss them with your loved ones and to consult a professional if necessary. To deepen your knowledge of advance directives and their drafting, consult our complete guide. Anticipating means protecting those we love.
