Adult protection law and curatorship
Understand, challenge, report, plan ahead
A curatorship (in French curatelle) is a measure ordered by a judicial authority to help an adult who can no longer manage important matters (administrative, financial, medical) on their own due to a mental impairment, a psychiatric disorder or another condition of weakness (serious illness, accident, addiction, etc.). This page presents, in plain language, the principles and types of curatorship, as well as practical steps for challenging a measure, reporting a concerning situation, or planning ahead with an advance care directive (in French mandat pour cause d’inaptitude). For personalised advice, please book an appointment.
Curatorship is governed by art. 388 et seq. of the Swiss Civil Code (new tab). Its purpose is always to preserve the autonomy of the person concerned: the authority must order only the least restrictive measure possible, and only if assistance from family, social network or private/public services is insufficient (principles of subsidiarity and proportionality).
Information sheet
- Adult protection measures (Guide social romand — in French)WEB
- KOKES — Conference of cantonal child and adult protection authoritiesWEB
- List of protection authorities (APEA/KESB/TPAE) per canton (KOKES)PDF
- Pro Infirmis — legal guide on curatorship (in French)WEB
- Application for a certificate of legal capacity (Geneva, in French)PDF
- Adult protection — official Geneva justice website (TPAE, in French)WEB
Principles of curatorship
When and by whom can a measure be ordered?
A curatorship is never ordered for the convenience of relatives. It presupposes that an adult can no longer protect their essential interests on their own — and that no less restrictive alternative (power of attorney, family help, social services) is available.
Under art. 390 of the Swiss Civil Code (new tab), the protection authority establishes a curatorship when two conditions are met: (1) the adult is partially or wholly prevented from safeguarding their interests due to a mental impairment, a psychiatric disorder or another condition of weakness (serious illness, accident, addiction, etc.); (2) they need help, and that help cannot be provided by family, by their social network or by private or public services.
Curatorship is governed by three essential principles:
- Subsidiarity: the authority intervenes only if no other solution (power of attorney, advance care directive, family help, social services) is sufficient.
- Proportionality: the chosen measure must be the least restrictive possible in light of the actual need for protection. Curatorship must not restrict the person’s freedom more than strictly necessary.
- Preservation of autonomy: as far as possible, the person concerned retains the exercise of their civil rights. Legal capacity is restricted only if the curatorship expressly so requires (in practice, mainly in the case of general curatorship).
Which authority decides?
In most Swiss cantons, the competent authority is the APEA (Adult and Child Protection Authority — in German KESB). In Geneva, however, the competent authority is the TPAE (Adult and Child Protection Court (new tab)) — this is therefore an actual court, composed of judges. This particularity is important: in Geneva, the procedure is judicial from the outset, and the avenues of appeal are adapted accordingly.
The full list of competent authorities by canton is maintained by KOKES: list of APEAs and competent courts (PDF) (new tab).
If you are facing a curatorship project (yourself, a relative or a friend) and want to understand the issues and alternatives, you may book an appointment by phone or online (new tab).
Does curatorship deprive the person of all their rights?
No. The basic rule is that the person placed under curatorship retains the exercise of their civil rights: they can continue to vote, to marry, to sign everyday contracts, etc. Their legal capacity is restricted only to the extent expressly provided by the authority’s decision, and only when this is strictly necessary to protect them. A complete loss of the exercise of civil rights occurs, in principle, only in the case of general curatorship.
Who is appointed as curator?
The authority appoints a person capable of carrying out the entrusted tasks, who has the necessary time and who performs them personally (art. 400 SCC (new tab)). This may be a relative of the person (spouse, child, parent, friend) or a professional curator (in Geneva, the Adult Protection Office — Office de protection de l’adulte, OPAd, formerly SPAd — performs this role in many situations). The authority takes account, as far as possible, of the wishes of the person concerned and of their relatives.
How long does a curatorship last?
Curatorship is not fixed: it is reviewed regularly by the authority and adapted as the situation evolves. It can be terminated at any time when the grounds that justified it no longer exist (art. 399 SCC (new tab)). The person concerned, their relatives or the curator may request termination at any time.
Who pays the curator?
In principle, the curator is entitled to appropriate remuneration, drawn from the assets of the person concerned (art. 404 SCC (new tab)). If the person does not have sufficient resources, these costs may be covered by the canton. In Geneva, the remuneration arrangements are set by cantonal regulation.
Types of curatorship
Four measures, from the lightest to the most restrictive
Accompaniment, representation and cooperation curatorships may be combined (art. 397 SCC (new tab)) in order to tailor the measure as precisely as possible to the actual needs of the person concerned. General curatorship, which already covers all areas, cannot be combined with the other types.
Swiss law provides for four types of curatorship, organised from the least to the most restrictive. The choice always depends on the concrete need of the person and the principle of proportionality.
1. Accompaniment curatorship
The accompaniment curatorship (art. 393 SCC (new tab)) is the least restrictive measure. The curator provides assistance for specific tasks (administrative steps, organisation of daily life, support in certain decisions), but the person concerned retains full control over their affairs and rights. This curatorship can only be established with the consent of the person concerned.
2. Representation curatorship
The representation curatorship (art. 394 SCC (new tab)) is established when the person can no longer perform certain acts alone. The curator represents them in the areas defined by the authority (for example, the management of a bank account, payment of bills, medical follow-up). The authority may, if necessary, limit the exercise of civil rights of the person in those same areas (art. 394 para. 2 SCC (new tab)).
In a frequent variant, the representation curatorship deals specifically with the management of assets (art. 395 SCC (new tab)): income, bank accounts, real estate, etc.
3. Cooperation curatorship
The cooperation curatorship (art. 396 SCC (new tab)) provides that certain specified acts of the person concerned (for example, signing a lease, buying a vehicle, withdrawing a significant sum) require the curator’s consent in order to be valid. Outside these acts, the person acts freely.
4. General curatorship
The general curatorship (art. 398 SCC (new tab)) is the most restrictive measure: it covers all areas of personal assistance, asset management and legal relations with third parties. It automatically deprives the person concerned of the exercise of their civil rights. The authority orders it only when no lesser measure is sufficient, in particular when the person is in a state of permanent incapacity of judgment.
To understand which type of curatorship is being considered in your situation (or that of a relative) and assess its appropriateness, you may book an appointment by phone or online (new tab).
What is the difference between curatorship and guardianship?
The term “guardianship” (in French tutelle) for adults no longer exists under Swiss law since the revision of 1 January 2013. The former guardianship has been replaced by the general curatorship. The other former measures (legal counsel, voluntary curatorship) have been merged into the current system of four flexible types of curatorship. The word “guardianship” remains in use for minors (when no parent exercises parental authority).
Can the type of curatorship be chosen?
The person concerned and their relatives may express their preferences, but the final choice of the type (and exact scope) lies with the authority, which must select the least restrictive measure possible. The accompaniment curatorship alone requires the consent of the person concerned. The other types may be imposed, but their scope must remain strictly proportionate to the need for protection.
Can a person under curatorship marry or make a will?
This depends on the type of curatorship and the capacity of judgment of the person. As a rule, a person under accompaniment, representation or cooperation curatorship retains the ability to marry or make a will, as long as they have the capacity of judgment at the time of the act. In the case of general curatorship, these acts remain possible but may be challenged if it can be shown that the person lacked the required capacity of judgment.
Challenging a curatorship
Avenues of appeal and time limits to respect
The appeal deadlines are short (as a rule, 30 days from notification of the decision, but only 10 days for provisional measures and in matters of placement for purposes of care). If you are considering challenging a measure, it is crucial to act quickly and not wait until the last moment.
Decisions of the protection authority may be challenged by the person concerned, by their relatives (spouse, registered partner, descendants, parents, siblings and any other person with a close relationship: see art. 450 para. 2 SCC (new tab)) or by any person with a legal interest. Three types of decisions may be challenged: the establishment of a curatorship, its maintenance, its content (scope, choice of curator), or even the acts of the curator themselves.
Appeal against a decision of the protection authority
Any decision of the protection authority (in Geneva: the TPAE) may be the subject of an appeal to the judicial appeal body (art. 450 SCC (new tab)). In Geneva, the appeal body is the Supervisory Chamber of the Court of Justice (Chambre de surveillance de la Cour de justice). The appeal deadline is generally 30 days from notification of the decision (art. 450b para. 1 SCC (new tab)). It is reduced to 10 days for decisions on provisional measures (art. 445 para. 3 SCC) and in matters of placement for purposes of care (art. 450b para. 2 SCC).
The appeal must be written and reasoned: it must indicate how the decision is contrary to the law, based on an inaccurate finding of facts or inappropriate (art. 450a SCC (new tab)). In matters of placement for purposes of care, however, the appeal does not need to state reasons (art. 450e para. 1 SCC). A decision on appeal may itself be brought before the Federal Supreme Court by way of an appeal in civil matters.
Complaint against acts of the curator
Independently of any decision by the authority, acts or omissions of the curator themselves may be the subject of a complaint to the protection authority (art. 419 SCC (new tab)). The person concerned, a relative or any person with a legal interest may report that the curator is not properly performing their duties, refuses a reasonable decision or causes harm. The authority examines the situation and, where appropriate, takes appropriate measures (instructions to the curator, modification of the measure, or even replacement of the curator).
Requesting a certificate of legal capacity (Geneva)
In Geneva, anyone may request a certificate confirming that they are not subject to a protection measure (useful, for example, for entering into certain notarised or administrative acts). The application is made using the official form:
Download the certificate of legal capacity application form (PDF, in French) (new tab)
If you are considering challenging a curatorship decision or the acts of a curator, you may book an appointment by phone or online (new tab). Given the short deadlines, do not delay in seeking advice.
Is a lawyer required to file an appeal?
Representation by a lawyer is not mandatory, but it is strongly recommended. Drafting an appeal requires good knowledge of the principles (subsidiarity, proportionality, autonomy), of procedure and of case law. A poorly reasoned or late appeal may be declared inadmissible without examination on the merits. The person concerned may also apply for legal aid (free legal assistance) if their resources are insufficient: in Geneva, the application is sent to the legal aid registry (greffe de l’assistance juridique) and decided by the presidency of the Civil Court (Tribunal civil, art. 21 LaCC), including for appeal proceedings.
Does an appeal suspend the measure?
In principle, yes: an appeal has suspensive effect (art. 450c SCC), unless the Adult and Child Protection Court or the Supervisory Chamber withdraws it, which happens in particular in urgent cases. In matters of placement for purposes of care, it is the reverse: the appeal has no suspensive effect unless it is granted (art. 450e para. 2 SCC).
What to do in case of disagreement with the curator without seeking their removal?
Before initiating formal proceedings, it is often useful to write to the curator setting out the disagreement clearly and to request a meeting. If the situation is not resolved, the complaint to the protection authority (art. 419 SCC) allows it to arbitrate the dispute, without necessarily replacing the curator.
Can termination of a curatorship be requested?
Yes. The person concerned, their relatives or the curator themselves may at any time request the termination of the measure when the grounds that justified it no longer exist (art. 399 SCC (new tab)). The authority examines this, where appropriate by requesting updated medical or social information. A refusal decision may be challenged through the ordinary avenues of appeal.
Reporting a concerning situation
When and how to alert the protection authority?
A report is not a criminal complaint. It is simply a way of informing the authority that an adult appears to need help. It is then for the authority to examine the situation and decide what action, if any, to take.
When you observe that a relative or a third party (a neighbour, a patient, an isolated elderly person) can no longer manage their essential affairs, appears to put themselves in danger, or is being exploited by their entourage, you may report this situation to the protection authority (in Geneva: the TPAE; elsewhere: the competent APEA/KESB).
Art. 443 of the Swiss Civil Code (new tab) distinguishes two situations:
- Anyone may notify the authority when an adult appears to need help (right to report, art. 443 para. 1 SCC).
- Persons who, in the exercise of an official function, become aware of such a situation are required to notify the authority (duty to report, art. 443 para. 2 SCC). Cantons may extend this duty to other persons (in particular medical and social professionals).
In Geneva, cantonal provisions specify the procedure for reporting. The form and process are described on the official Geneva justice website (TPAE, in French) (new tab).
Form and content of the report
The report is sent to the Protection Court in writing or electronically. It must include:
- the identity of the person concerned (name, address, date of birth if possible);
- a factual description of the concerning situation (observed facts, dates, places, witnesses);
- the surname, first name and address of the reporter;
- where appropriate, useful documents (medical reports, unpaid bills, correspondence, etc.).
In Geneva, the Protection Court does not consider anonymous reports, nor abusive or manifestly unfounded ones (art. 33 LaCC). A detailed report allows for a more effective investigation. The reporter is not a party to the proceedings: they have no access to the file and will not, as a rule, be informed of the outcome.
If you are hesitating to report a situation (an ageing parent, an isolated neighbour, a patient) or if you have yourself received a report concerning you, you may book an appointment by phone or online (new tab).
Does reporting expose me to liability?
A report made in good faith, on the basis of concrete elements, does not expose the reporter to liability, even if the authority ultimately concludes that no measure is necessary. On the other hand, a manifestly abusive report (false, made with intent to harm) may expose its author to civil or even criminal liability (for example for defamation, art. 173 CP (Criminal Code) (new tab)).
What happens after the report?
The authority examines the elements provided and decides whether to open an investigation. It may summon the person concerned, request medical or social information and hear relatives. If it concludes that no measure is needed, it closes the report. Otherwise, if the situation justifies it, it opens a formal procedure that may result in the establishment of a curatorship, sometimes preceded by urgent provisional measures.
Does professional secrecy prevent a doctor from reporting?
Professional secrecy is reserved (art. 443 SCC): unless the patient consents, the doctor must be released from secrecy before reporting. In Geneva, the release is requested from the professional secrecy commission (commission du secret professionnel, art. 12 of the Health Act). The Geneva rules extending the duty to report to certain professionals (health, education, social work) concern the protection of minors (art. 34 LaCC).
Advance care directive
Plan ahead, without waiting for the authority to step in
The advance care directive (in French mandat pour cause d’inaptitude) allows anyone to designate in advance who will take their personal decisions, manage their assets or represent them legally on the day they become incapable of judgment: in practice, it is the best way to avoid a curatorship.
The advance care directive is governed by art. 360 et seq. of the Swiss Civil Code (new tab). It is an act by which any person capable of judgment and of full age instructs one or several natural or legal persons (a relative, a lawyer, a fiduciary) to:
- provide personal assistance (housing, care, daily life);
- manage their assets (income, accounts, real estate, bills);
- represent them in legal relations with third parties (administrations, banks, insurance companies).
The directive only takes effect when the person loses their capacity of judgment, and only after validation by the protection authority. As long as the person is capable of judgment, they may modify or revoke it freely, at any time.
Form of the directive
The directive must, on pain of nullity, be in one of the following two forms (art. 361 SCC (new tab)):
- Holographic form: entirely handwritten, dated and signed by the principal themselves (like a holographic will).
- Authentic form: drawn up by a notary.
A typewritten and merely signed directive is void. So that the directive can be located when needed, it is strongly recommended to have its existence and place of deposit entered in the central civil status database (Infostar); any civil registry office will make this entry on request (art. 361 para. 3 SCC).
What about advance medical directives (living will)?
The advance medical directives (art. 370 SCC (new tab)) are a distinct but complementary instrument: they allow a person to refuse or accept in advance certain medical treatments in case they are no longer capable of judgment (for example, refusal of futile life-prolonging treatment, designation of a therapeutic representative). They are drafted in written form, dated and signed, and do not require authentic form.
To draft or revise an advance care directive or advance medical directives, you may book an appointment by phone or online (new tab).
Does the advance care directive avoid any intervention by the authority?
To a large extent, yes. If the directive is valid, complete and accepted by the mandatary, the protection authority simply validates it and orders a curatorship only for the tasks not covered by the directive (art. 363 SCC (new tab)). For this reason, it is essential to draft a directive that is as broad as necessary and that anticipates the main situations (health, housing, banking, real estate, etc.).
What happens in the absence of a directive?
The law provides for a statutory right of representation in favour of the spouse or registered partner who lives in the same household as the person incapable of judgment, or who provides them with regular personal assistance (art. 374 SCC (new tab)). This right is limited to ordinary acts necessary for the maintenance and ordinary management of income and assets. For more important acts, the protection authority must be involved. In the absence of a spouse or in case of disagreement, the curatorship takes over.
Isn’t an ordinary power of attorney enough?
No. An ordinary power of attorney, even a general one, becomes legally fragile the moment the principal loses their capacity of judgment: banks and administrations frequently refuse to recognise it from that moment on. Only the advance care directive, subject to the strict requirements of art. 361 SCC and validated by the protection authority, takes effect precisely in this situation.
Can the directive provide for remuneration of the mandatary?
Yes. The directive may freely set the remuneration of the mandatary (lump sum, hourly rate, free of charge). In the absence of such a clause, the protection authority sets appropriate compensation where the scope of the tasks justifies it or where the mandatary’s services are usually paid for (e.g. those of a lawyer or a fiduciary); this remuneration and the justified expenses are borne by the principal (art. 366 SCC (new tab)).
Contact
Me Jean-Philippe Anthonioz is available by appointment only.
If you require further advice, please do not hesitate to contact the office secretary by phone to arrange an appointment for a fixed fee consultation. You can also reach the office using the contact details provided below. Additionally, you may book an appointment online (new tab).
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