Legal capacity is the power to establish rights and obligations through one's own conduct. Who has it, when does it begin, when does it end? An overview of the Swiss rules.
Legal capacity (Art. 12 et seq. CC) is the legal power to establish rights and obligations through one's own actions. It presupposes two components: majority (completion of the 18th year) AND capacity of judgment. Both must be present simultaneously — if one is missing, legal capacity is limited or absent.
Legal personality vs. legal capacity
Legal personality (Art. 11 CC) is the quality of being the bearer of rights and obligations. It begins with the completion of birth and ends with death. Every person has legal personality — even an infant can be an heir, own an account, become a party to a contract, represented by legal representatives.
Legal capacity is narrower: it additionally requires the capacity to act reasonably. An infant has legal personality but no legal capacity — they cannot independently conclude a contract.
Majority (Art. 14 CC)
Upon completion of the 18th year. Until then, a person is a minor — they have legal personality, but only limited legal capacity.
Capacity of judgment (Art. 16 CC)
The capacity to act reasonably — to grasp a concrete decision in a concrete situation and to understand its consequences. It can be situationally absent — in acute dementia, severe intoxication or drug influence, psychiatric crisis, high-grade influence.
Capacity of judgment is presumed (Art. 16 CC). Whoever invokes the lack of capacity bears the burden of proof. This is frequent in inheritance law and in contract challenges — for instance when a will was drafted shortly before death and relatives doubt its validity.
Limited legal capacity
Minor persons with capacity of judgment can themselves decide on transactions of daily life (purchases within reasonable limits), highly personal transactions (marriage from 18, religious choice, bodily interventions from capacity of judgment), and they can bind themselves contractually from their own earnings. Larger transactions require the consent of the legal representation (parents, guardian) and, if applicable, the KESB (child and adult protection authority).
Adult protection: assistantship
Adults whose capacity of judgment is permanently limited can be placed under assistantship (Art. 390 et seq. CC). The KESB orders the assistantship — measures range from accompanying assistantship (support without limiting legal capacity) through cooperative assistantship (co-signature obligation) to comprehensive assistantship.
A complete suspension of legal capacity — like the former incapacitation — no longer exists in this form since the 2013 reform of adult protection law. Even under assistantship, the person retains their personality rights in principle.
Anticipation: advance directive and patient decree
Those who wish to make provisions while in full possession of their capacity of judgment can establish an advance directive (Art. 360 et seq. CC) — it determines who manages assets, takes care of personal affairs and represents the person before authorities in case of incapacity of judgment. Plus a patient decree for medical decisions. Both require written form or public notarisation.