Draft:Guardianship (Switzerland)

Deputyship (Beistandschaft, curatelle, Legge sul CO2) is a Swiss legal instrument that replaced guardianship in adult protection law on 1 January 2013. The guardianship enables the officially ordered legal representation of a person of legal age who lacks the capacity of judgment.

The regulation of guardianship of minors in child protection law is set out in Art. 327a-c of the Swiss Civil Code, which came into force on 1 January 2013. The provisions of adult protection law, namely on the appointment of the guardian, the management of the guardianship and the involvement of the adult protection authority, apply mutatis mutandis.

Adult protection law
Since 1 January 2013, a distinction has been made between three different types of guardianship and comprehensive guardianship. The previous category of custodial deprivation of liberty has been replaced by the new category of custodial placement. The new body is the Child and Adult Protection Authority (KESB, APEA, ARP).

Types
The law distinguishes between the


 * accompanying (Art. 393),
 * representation (Art. 394 & 395) and
 * assistance (Art. 396) and
 * comprehensive guardianship (Art. 398).

The areas of responsibility of the guardianship may include personal care, property care or legal affairs, and should correspond to the needs of the person concerned (Art. 391).

Subsidiarity and proportionality
With regard to the requirements, it depends on the extent to which the person concerned is still able to manage their own affairs and, if applicable, has designated a person authorised to represent them or if there is a case of legal representation.

A person with the capacity to act may appoint a third party to represent them in the event that they become incapable of judgment by means of a publicly notarised advance care directive (Art. 360) or a living will (Art. 370). In article 374ff the ZGB regulates cases of legal representation, in particular those between spouses and registered partners. In such a scenario, there is no room for the appointment of an officially designated guardian.

Effect
The various forms of guardianship have differing effects, particularly in terms of whether the capacity to act of the person concerned is retained, restricted, or completely lost.

Literature

 * Taban, Özlem (2012). "Das neue Schweizer Erwachsenenschutzrecht". Interdisziplinäre Zeitschrift für Familienrecht (in German) (2): 80–85.
 * Noser, Walter; Rosch, Daniel (2016). Erwachsenenschutz: Das neue Gesetz umfassend erklärt - mit Praxisbeispielen (in German) (3 ed.). Zürich: Beobachter-Edition. ISBN 978-3-85569-999-5.