The Federal Council intends to amend the Swiss Civil Code to bring guardianship legislation – which has remained unchanged since 1912 – into line with modern circumstances and attitudes. The complete revision of guardianship law supports the subject's right to choose while also relieving the burden on the state. A person with legal capacity can draw up an advance directive which stipulates how they are to be cared for and represented legally in the event of their incapacity, thereby settling such matters privately rather than through the authorities. They can also issue an advance health care directive which states which medical treatment they consent to, or nominates another person to consent to such treatment on their behalf.
Present guardianship procedures do not respect the principle of proportionality to a sufficient degree. The new laws will therefore institute a standard instrument – the concept of "official assistance", or Beistandschaft – in place of standardized measures. If a person is no longer able to handle their own affairs as a result of mental disability, psychiatric disorder or similar debility and the support provided by family members, private volunteers or public services is insufficient, the authorities will in future be called upon to tailor a support package for that person. They must determine the tasks and roles to be fulfilled by official assistance in accordance with the needs of the person concerned, so that care by the state is limited to what is genuinely needed.
In the future, parents and other family members who are appointed by the authorities in this capacity will be granted certain privileges. For example, they will not have to produce inventories or submit periodic reports, as is the case with institutional care-givers. The need for the relatives of persons without legal capacity to make decisions quickly and easily has also been taken into account. For example, the new law grants relatives the right to open mail, to ensure that income and assets are properly managed and to take the necessary action to ensure living expenses are met. This both strengthens family solidarity and avoids the authorities systematically having to invoke the official assistance system.
In addition, the revised legislation will afford better protection to persons without legal capacity who live in residential and nursing homes. A written care agreement must be concluded for these individuals in order to create transparency about exactly what services are being provided. Conditions will also be stipulated under which freedom of movement may be restricted. Finally, the cantons will be obliged by law to monitor such residential and nursing institutions.
The revised legislation also extends the legal protection afforded to persons living in care homes. New provisions include restrictions on the authority doctors have to commit people to nursing care, and a foundation in law for important procedures. The authorities must review a person's residence in such institutions on a regular basis.
At present, the Swiss system of guardianship is a confusion of different rules and regulations. In the future, all decisions regarding the protection of children and vulnerable adults will be taken by a specialist authority, which the cantons may set up as administrative agency or a court. Ultimately, all of the key procedural principles governing the protection of children and vulnerable adults will be standardized on a national basis and laid down in the Swiss Civil Code.
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Last modification 07.11.2012