The revision of adult protection law came into force on 1 January 2013 (art. 360-455 CC). It replaced the former guardianship law, which was considered too rigid and insufficiently respectful of individual autonomy. The new law rests on a central principle: protection measures must be proportionate to the person's needs and limited to what is strictly necessary (art. 389 CC). The law distinguishes between measures that individuals may take in advance on their own initiative, statutory representation by operation of law in certain situations, and measures ordered by the adult protection authority (APEA).
Anticipatory personal measures
Swiss law offers every person with capacity the possibility of organizing their own protection in advance, before a situation of incapacity arises.
Continuing power of attorney (art. 360-369 CC)
A continuing power of attorney allows any person with capacity to designate in advance one or more natural or legal persons responsible for caring for them, managing their assets or representing them in legal matters in the event of incapacity (art. 360 para. 1 CC). This power of attorney is a direct expression of personal autonomy and is the preferred instrument for anticipatory protection.
The power of attorney must be established in one of the two forms provided by law (art. 361 CC):
- Authentic form: the power of attorney is received by a notary, who verifies the capacity of the grantor and authenticates the deed
- Holographic form: the power of attorney must be written entirely by hand, dated and signed by the grantor; a typed or computer-generated document is not valid in this form
The grantor may deposit the power of attorney with the civil register office of their domicile, which records its existence in the central wills register (art. 361 para. 3 CC). When a person becomes incapacitated, the APEA examines whether the designated agent is fit to perform the assigned tasks and issues a certificate of authority if necessary (art. 363 CC).
Advance patient directives (art. 370-373 CC)
Advance patient directives allow any person with capacity to express in writing the medical treatments they consent to or refuse in the event they become incapacitated (art. 370 para. 1 CC). These directives are limited to the medical field: they do not allow the designation of a representative for asset management or legal acts in general.
The physician is bound to respect the advance directives, unless they violate legal provisions or there are serious indications that the patient has revoked them (art. 372 CC). The physician may depart from the directives if, in their medical assessment, the directives do not correspond to the patient's hypothetical wishes in the concrete situation.
Representation by spouse or registered partner (art. 374-376 CC)
When a spouse or registered partner becomes incapacitated without having established a continuing power of attorney, the other spouse or partner is entitled by operation of law to represent them for acts necessary for day-to-day maintenance, ordinary administration of income and other assets, and extraordinary administration of assets in urgent cases (art. 374 para. 1 CC).
This representation by operation of law is automatic: it requires no intervention by the APEA. However, the APEA may withdraw or limit this right of representation if the interests of the incapacitated person are or risk being compromised (art. 376 para. 1 CC), particularly in the event of a conflict of interest between spouses.
Representation in medical matters (art. 377-381 CC)
When an incapacitated person must receive medical treatment and has not addressed this in advance directives, the treating physician obtains the consent of their legal representative (art. 377 para. 1 CC). The law establishes a precise hierarchy of persons authorised to represent the patient:
- The person designated in the advance directives or by a continuing power of attorney
- The guardian whose task is to assist the person in medical decisions
- The spouse or registered partner, if they share the same household or provide regular personal assistance
- The person sharing the same household as the incapacitated person and providing regular personal assistance
- Descendants, parents, siblings, in the order provided by law
In an emergency, the physician may carry out any medically necessary treatment, in accordance with the hypothetical wishes and in the interest of the incapacitated person (art. 381 CC).
Measures ordered by the authority — guardianship (art. 390-425 CC)
Where anticipatory personal measures and statutory representation are insufficient to protect a person's interests, the APEA may order guardianship (art. 390 CC). The establishment of guardianship requires that the person is partially or wholly unable to safeguard their own interests due to mental impairment, psychological disorders or another condition of weakness. Swiss law provides for four types of guardianship, which may be combined.
| Type of guardianship | Legal basis | Content | Effect on legal capacity |
|---|---|---|---|
| Accompanying guardianship | Art. 393 CC | The guardian carries out certain steps with the consent of the person concerned | No restriction — legal capacity is fully preserved |
| Representative guardianship | Art. 394-395 CC | The guardian carries out legal acts in the name and on behalf of the person concerned | May be restricted in the relevant areas (art. 394 para. 2 CC) |
| Cooperative guardianship | Art. 396 CC | Certain acts require the guardian's consent to be valid | Restricted in areas subject to cooperation |
| Comprehensive guardianship | Art. 398 CC | Covers all areas of personal assistance, asset management and legal relations | Deprives the person of legal capacity — the most restrictive measure |
The guardian appointed by the APEA must have the necessary skills and knowledge, have sufficient time available and perform their tasks personally (art. 400 CC). The APEA takes into account the wishes of the person concerned and may appoint a close relative as guardian. The guardian is subject to APEA supervision and periodically submits a report on the person's situation and an account of their management (art. 411 CC).
Principle of proportionality (art. 389 CC)
The adult protection authority may only intervene to the extent that assistance provided by family, relatives, neighbours or private or public services is insufficient (art. 389 para. 1 CC). Any measure ordered must be necessary and adapted to the concrete situation of the person concerned. This principle of subsidiarity and proportionality is fundamental in the new law:
- Subsidiarity: an official measure may only be ordered if private resources are insufficient
- Adequacy: the measure must be appropriate to the situation and needs of the person
- Necessity: the measure must be limited to what is strictly necessary to protect the person
- Strict proportionality: the restriction of civil rights may not exceed what the situation requires
Applying this principle, the APEA prefers less restrictive measures (accompanying guardianship) over more intrusive ones (comprehensive guardianship), and adapts the measure during proceedings if the person's situation changes.
Involuntary placement (art. 426-439 CC)
Involuntary placement is a measure by which a person is placed in an appropriate institution (psychiatric institution, care home, etc.) against their will or retained in such an institution (art. 426 CC). The legal conditions for involuntary placement are strict:
- The person must suffer from a psychological disorder, mental impairment or a serious state of neglect
- They require treatment or assistance that cannot be provided otherwise
- The necessary treatment or assistance can only be provided in an institutional setting
In principle, only the APEA is competent to order involuntary placement (art. 428 CC). However, physicians authorised by cantonal law may order involuntary placement for a maximum period of six weeks (art. 429 CC). The placed person must be able to communicate with the outside world, be informed of their rights and may at any time request their release (art. 432 and 439 CC).
The adult protection authority (APEA)
The adult protection authority (APEA) is the competent authority for ordering the protection measures provided for by federal law. It is a collegial cantonal judicial or administrative authority (art. 440 CC). Its jurisdiction is determined by the domicile of the person concerned.
| Canton | Competent authority |
|---|---|
| Geneva | Tribunal de protection de l'adulte et de l'enfant (TPAE) |
| Vaud | Justice de paix (jurisdiction at district level) |
| Valais | Autorité de protection de l'adulte et de l'enfant (APAE) |
| Fribourg | Justice de paix |
The APEA examines files, hears the persons concerned and their relatives, may request medical expert reports and orders appropriate measures. It also supervises guardians and may modify, combine or lift ordered measures if the situation changes (art. 431 and 439 CC).
Appeals against decisions of the protection authority
Decisions of the APEA may be appealed before the competent cantonal judicial authority (art. 450 CC). The essential rules applicable to appeals are as follows:
- Appeal period: thirty days from notification of the decision (art. 450b CC)
- Standing to appeal: the person concerned, their close relatives and any person with a legitimate interest (art. 450 para. 2 CC)
- Grounds for appeal: violation of law, incorrect or incomplete establishment of relevant facts, or inappropriateness of the decision (art. 450a CC)
- Suspensive effect: the appeal does not in principle have suspensive effect, unless the appeal authority decides otherwise
In matters of involuntary placement, the law provides for specific and expedited appeal procedures (art. 439 CC). The placed person may at any time request their release from the APEA and, in the event of refusal, appeal to the cantonal judicial authority. The court rules within five working days (art. 450e CC).
Comparison of protection measures
| Measure | Ordered by | Consent required | Restriction of rights | Scope of application |
|---|---|---|---|---|
| Continuing power of attorney | The person themselves (anticipatory) | Yes — voluntary act | None | All areas according to the mandate |
| Advance directives | The person themselves (anticipatory) | Yes — voluntary act | None | Medical decisions only |
| Representation by spouse | Law (by operation of law) | Not required | None | Day-to-day maintenance, emergencies |
| Accompanying guardianship | APEA | Yes — of the person concerned | None | Specific agreed steps |
| Representative guardianship | APEA | Not required | Partial (relevant areas) | Acts performed by the guardian |
| Cooperative guardianship | APEA | Not required | Partial (relevant areas) | Acts subject to guardian's consent |
| Comprehensive guardianship | APEA | Not required | Total — deprives of civil rights | All areas |
| Involuntary placement | APEA (or authorised physician) | Not required | Personal liberty restricted | Institutional treatment |
PBM Avocats assists in all proceedings relating to adult protection: drafting a continuing power of attorney or advance directives, representation before the APEA, and appeals against placement or guardianship decisions. Our expertise in family law and civil law covers the entire field of adult protection law. To plan the transfer of your estate, please also consult our pages on inheritance law and Swiss wills.
Frequently asked questions on adult protection
What is the difference between a continuing power of attorney and advance directives?
A continuing power of attorney (art. 360-369 CC) allows any person with capacity to designate in advance one or more trusted persons to represent them in all or specific areas (personal assistance, representation in legal matters, asset management) in the event of incapacity. It may be executed in authentic form (before a notary) or in holographic form (entirely handwritten, dated and signed). Advance patient directives (art. 370-373 CC) are more limited: they concern only medical decisions. They allow a person to specify the medical treatments they accept or refuse in the event of incapacity. Both instruments may be established independently or together.
Who may request an adult protection measure?
Under art. 390 CC, the adult protection authority (APEA) establishes guardianship when an adult is partially or wholly unable to safeguard their own interests due to mental impairment, psychological disorders or another condition of weakness affecting their personal situation. Any person may report to the APEA that someone appears to need assistance. The authority may also act on its own initiative. Close relatives, the treating physician or social services are often at the origin of referrals. The person concerned may also approach the APEA directly.
Who appoints the guardian and on what criteria?
It is the adult protection authority (APEA) that appoints the guardian (art. 400 CC). The APEA selects a natural person with the skills and knowledge necessary to carry out the assigned tasks, who has sufficient time available and performs them personally. It takes into account, as far as possible, the wishes of the person concerned and their relatives. The APEA may appoint a close relative as guardian, but also a professional guardian if circumstances require it. The guardian is subject to APEA supervision and must report to it regularly.
Can a person under guardianship still manage their assets?
This depends on the type of guardianship established. Accompanying guardianship (art. 393 CC) does not restrict legal capacity: the person retains full legal capacity. Representative guardianship (art. 394-395 CC) and cooperative guardianship (art. 396 CC) may restrict this capacity in the relevant areas. Only comprehensive guardianship (art. 398 CC) deprives the person of legal capacity as a whole — it is the most restrictive measure. The APEA ensures the measure conforms to the principle of proportionality (art. 389 CC): guardianship may only restrict legal capacity to the extent necessary.
How can a decision of the adult protection authority be challenged?
Decisions of the APEA may be challenged by appeal (art. 450 et seq. CC). The appeal must be lodged within thirty days of notification of the decision before the competent judicial authority designated by cantonal law. In Geneva, this is the Supervisory Chamber of the Court of Justice; in the canton of Vaud, the district Justice of the Peace and then the cantonal court. The appeal may be lodged by the person concerned, their close relatives or any other person with a legitimate interest. In matters of involuntary placement, specific appeal procedures are provided under art. 439 and 450 et seq. CC.