Adult and child protection — the TPAE in Geneva

Swiss adult-protection law was deeply reformed on 1 January 2013: the former tutelle/curatelle regime gave way to a graduated and individualised system (CC arts. 360-456). In Geneva, the Tribunal de protection de l’adulte et de l’enfant (TPAE) rules at first instance. The firm acts for the protected person, their family, or the appointed curator.

Anticipated mandate (mandat pour cause d’inaptitude)

The anticipated mandate (CC arts. 360-369) is a written instrument by which a person who still has capacity designates, in advance, who will represent them — for personal care, asset management or both — should they later lose discernment.

Conditions of form: holographic (entirely handwritten, dated and signed) or authentic (executed before a notary). Validation by the TPAE at the moment the mandator becomes incapable. The mandate can specify: who, which powers, which restrictions, what remuneration.

Operational value: it prevents the imposition of a state-appointed curator chosen by the TPAE — the trusted person you named steps in instead.

Advance health directives (directives anticipées)

CC arts. 370-373 — written instructions on medical treatment in case of loss of capacity. They allow you to refuse specific treatments, designate a therapeutic representative, and indicate end-of-life preferences.

Validity: written, dated, signed. Binding on medical personnel unless serious doubt exists as to their current adequacy to the situation. No notary required.

Graduated curatorship measures (CC arts. 390-425)

When the protected person can no longer manage their affairs and no anticipated mandate exists, the TPAE imposes a curatorship calibrated to the actual need:

• Accompaniment curatorship (art. 393) — support without restricting legal capacity.
• Representation curatorship (art. 394) — the curator represents the person for specified acts.
• Cooperation curatorship (art. 396) — certain acts require the curator’s consent.
• Comprehensive curatorship (art. 398) — the broadest measure, removes legal capacity.
• Combined curatorship (art. 397) — combination of the above.

The TPAE periodically reviews the measure and adapts it.

Placement for assistance purposes (CC arts. 426-439)

A person can be placed in an institution against their will if they suffer from a mental disorder, a mental disability or a state of grave neglect, and if the assistance required cannot otherwise be provided. Strict procedural safeguards apply: written and reasoned decision, immediate notification, right of appeal to the TPAE within 10 days, right to counsel of one’s own choosing, periodic review.

Child protection — same court, same logic

The TPAE also rules on child protection. Measures range from light parental-support orders to withdrawal of parental authority (CC art. 311), with intermediate steps: appointment of a curator for the child, removal of the right to determine residence, placement in foster care.

The firm assists parents whose file is before the TPAE and represents children when a curator ad litem is appointed.

Roles the firm plays

• Drafting an anticipated mandate for a client who wishes to plan ahead.
• Drafting advance health directives with the medical specificity required.
• Representation before the TPAE — opposing a proposed measure, challenging the scope of a curatorship, requesting modification.
• Appealing TPAE decisions to the Cour de justice — Chambre de surveillance, 30-day deadline.
• Advising relatives of a person facing diminished capacity.
• Acting as professional curator when appointed by the TPAE.

Timing and costs

• Drafting of anticipated mandate or advance directives: 2 to 4 hours of work, CHF 800-1’500.
• Representation in TPAE proceedings: variable, often CHF 2’500-6’000 depending on file complexity.
• Appeal to the Cour de justice: CHF 3’000-6’000 plus court fees.
• Legal aid (assistance juridictionnelle) available according to cantonal scales.

Specific case: cross-border adult protection

For binational persons or those residing abroad with family in Geneva, two structural questions arise:

• Jurisdiction — the TPAE rules for persons residing in Geneva. For a relative residing in France, the French guardianship judge (juge des tutelles) has jurisdiction (Hague Convention 2000).
• Recognition — an anticipated mandate signed in Switzerland may be recognised in France via the Hague Convention 2000 — subject to conditions, ratification in progress.

For binational families, coordination between the Swiss and French protective regimes is essential to avoid contradictory measures or gaps in protection. The firm regularly works alongside French notaries and guardianship counsel to align the two systems.

Common pitfalls

1. Waiting too long to sign an anticipated mandate. The mandate is only valid if the mandator had capacity at the time of signing. Early dementia or progressive cognitive decline can render a late mandate vulnerable to challenge.
2. Holographic mandate with a missing element. A non-handwritten correction, a missing date or a printed signature voids the document. Notarial form is safer in complex situations.
3. Choosing a single mandatary. If the named person dies, refuses or is unable, the TPAE imposes a curator. Designate substitutes.
4. Confusing the mandate with a power of attorney. A banking power of attorney lapses upon loss of capacity — only the anticipated mandate survives.
5. Ignoring advance directives in favour of the mandate alone. The mandate covers asset management; the directives cover medical decisions. Both are needed for full coverage.

Documents to prepare

• Identity documents of the mandator and designated mandatary
• Medical certificate of capacity (recommended for high-value estates)
• Inventory of assets to be administered
• Existing wills, marriage contracts, inheritance pacts (for coordination)
• For directives: list of treatments to be refused, designated therapeutic representative

Related pages

• Family law — general practice
• Successions and inheritance law — coordinating the mandate with estate planning

Maître Andrea von Flüe handles every protection file personally in Geneva. First consultation CHF 50.