The case from the small eastern Swiss municipality of Wattwil made national headlines: The adviser of an 83-year-old man sold the family’s assets to pay for nursing home care for the elderly man. However: the KESB official sold the assets far below market value.

An old patrician house with grounds for CHF 900,000.00, a plot of agricultural land for CHF 40,000.00 – the adviser accepted prices far below the market value to finance the monthly care costs of the 83-year-old man. The consequences are borne not only by the assets’ owner, who is unable to judge, but also by his relatives. The wealth is decreased without the owner’s family being able to exert any influence.

However, this could have been prevented – with a precautionary order. On the basis of a precautionary order, a competent person can instruct one or more persons to take over the assets and personal care to the desired extent in the event of the owner losing competency. In addition, a living will, which contains orders for medical measures, can be integrated directly in the precautionary order. This prevents the authorities from making decisions about these issues.

In the concrete case, the 83-year-old man could have appointed his children, for example, as authorized representatives. By this method, his children would have had the power to make decisions about their father’s assets and would therefore have been able to influence the sale of the land and prevent a sale below market value. This example illustrates that it is worthwhile to set up a precautionary order at an early stage.

But tread carefully! There are also a number of things to bear in mind when drawing up a precautionary order. For example, the KESB recently held in a validation decision that there could be a conflict of interest in a precautionary order, in which the spouses appoint each other as a delegated person and are joint owners of real estate. If this were the case, the KESB would not accept the appointment of the spouse. The consequence of this would be that the KESB would, in turn, decide on and appoint a counsel for the person unable to make a decision. Consequently, as in the Rechsteiner family case described above, the KESB could, at its discretion, dispose of and sell the family assets, in particular properties of persons incapable of making a judgement.

The KESB’s approach gives rise to doubts. If a spouse is appointed in the precautionary order, this indicates a wish to be represented by that spouse in case of diminishing capacity. Why a conflict of interest should exist per se in such a case is incomprehensible. Moreover, the KESB is also inconsistent in this respect: why should a precautionary order be deemed invalid only if the spouses are joint owners of real estate? Would this not also be the case if they had joint ownership of shares, cars or works of art? Would it then make any sense at all to make the surviving spouse the appointed person or would the risk of the precautionary order being declared invalid be too great? However, this would undermine the purpose of a precautionary order.

In order to avoid such discussions with the KESB and the risk of an invalid precautionary order, it is worth taking the advice of an expert for drawing up such a precautionary order. Our civil-law notaries office will be happy to assist you at any time with advice and in the preparation of a precautionary order.

Article in “Blick”
Balex Team