Curatorship in Switzerland: Types and Conditions

Curatorship: An Instrument of Adult Protection

Swiss adult protection law was profoundly reformed in 2013. The former guardianship system was replaced by a regime of tailor-made curatorship, more respectful of the autonomy of the person concerned. Art. 390 to 399 of the Civil Code (CC) govern the different types of curatorship.

General Conditions (Art. 390 CC)

Art. 390 para. 1 CC provides that a curatorship is established when an adult is unable to safeguard their own interests due to a mental disability, psychological disorder or other condition of weakness affecting their personal situation. The measure must be necessary and proportionate: the principle of subsidiarity requires that curatorship be ordered only if informal assistance (family, close persons, social services) is insufficient.

Art. 389 CC enshrines the principles of subsidiarity and proportionality: the adult protection authority (APEA) must only order a measure if it is indispensable and adapted to the specific situation of the person.

The Four Types of Curatorship

Advisory Curatorship (Art. 393 CC)

Advisory curatorship is the least restrictive measure. It is established when the person concerned needs support to carry out certain acts of daily life (administrative formalities, correspondence management, etc.). The curator has no power of representation: they advise and assist, but the person retains their full capacity to act. This measure is based on the consent of the person concerned.

Representative Curatorship (Art. 394-395 CC)

Art. 394 CC provides for representative curatorship when the person cannot carry out certain acts and must be represented. The curator acts in the name of the person in the areas defined by the APEA (financial management, legal proceedings, healthcare, etc.). Art. 395 CC specifies that the APEA may deprive the person of access to certain of their assets if necessary to protect their interests.

Representative curatorship may be limited to specific acts or extended to the entirety of asset management, depending on the person's needs.

Cooperative Curatorship (Art. 396 CC)

Art. 396 CC establishes cooperative curatorship. In this case, certain legal acts of the person concerned are subject to the consent of the curator. The person retains their capacity to act, but cannot carry out the acts designated by the APEA without the curator's agreement. This measure is appropriate when the person is capable of acting but risks making decisions detrimental to their interests.

General Curatorship (Art. 398 CC)

Art. 398 CC provides for general curatorship, which is the most extensive measure. It is reserved for cases where the person permanently needs help in all areas of their life and is totally unable to manage their affairs. The person is deprived of the exercise of their civil rights. This measure replaces the former guardianship and may only be ordered as a last resort.

Combination of Measures (Art. 397 CC)

Art. 397 CC allows the APEA to combine different types of curatorship to create a tailor-made measure adapted to the specific needs of the person. For example, representative curatorship for financial management may be combined with cooperative curatorship for medical decisions.

Proceedings Before the APEA

A request for curatorship may be filed by the person concerned, by a close person or by anyone with a legitimate interest. The APEA may also act ex officio. The person concerned must be heard in person (art. 447 CC) and may be assisted by a representative. The APEA may order a medical expert opinion if necessary.

The APEA's decision may be appealed to the competent cantonal court within thirty days (art. 450 CC).

The Role and Obligations of the Curator

The curator is appointed by the APEA. They must exercise their mandate in the interest of the protected person and respect, as far as possible, their wishes (art. 406 CC). They regularly report on their management to the APEA (art. 411 CC) and must obtain the APEA's consent for certain important acts (art. 416 CC), such as the sale of real estate or the conclusion of long-term contracts.