Caroline Suter, Legal Service of the Swiss AIDS Federation

What does the law say?
The answer is found in Articles 328 and 329 of the Swiss Civil Code (CC), which regulate what is known as the duty of support between relatives. This applies to relatives in the direct line (grandparents, parents, children, grandchildren) and applies in both directions. This means parents can request support from their adult children in case of need, and vice versa. Collateral relatives – such as siblings, aunts, uncles, and cousins – are not subject to this duty.

A situation of need exists when a person cannot support themselves through their income, assets, or third-party benefits (such as social insurance). Support covers essential needs such as food, clothing, housing, or medical care. Legally, the cause of this situation of need is irrelevant.

The duty of support only exists, however, if the relatives concerned are themselves in a favorable financial situation. People with limited means are not required to provide financial help. Federal Supreme Court case law sets high thresholds in this regard for income and assets. In practice, relatives are therefore only rarely required to contribute financially, and only when their income significantly exceeds a generous protected minimum.

Duty of support and supplementary benefits or social assistance
People who receive supplementary benefits to AHV or IV don't need to fear that authorities will first check whether relatives could step in financially. The law on supplementary benefits does not make the right to benefits conditional on the duty of support between relatives. Supplementary benefits are granted regardless of the potential financial capacity of parents or children.

The situation is different with social assistance. Social assistance authorities can actively assert the duty of support against relatives. In principle, the right to support between relatives takes precedence over the right to social assistance.

This should be distinguished from the duty of support between spouses (Art. 163–165 CC). This always takes precedence over the duty of support between relatives and must be taken into account by social authorities.

The question of disclosing information
People who ask relatives for support – or who are invited to do so by authorities – sometimes have to explain the reasons for their difficult financial situation. When this is linked to health problems, it can involve very personal and sensitive information.

The decision about which medical information to disclose always belongs to the person concerned. Social assistance authorities are not authorized to pass this information on to relatives. It is nonetheless recommended to explicitly remind authorities of the confidential nature of this data and to clarify that disclosure without consent is not permitted.

Conclusion
The duty of support between relatives is more complex than it first appears. Both people in need of support and relatives being asked for it should have their legal situation carefully reviewed. The Legal Service of the Swiss AIDS Federation is happy to advise you.

Legal counseling from the Swiss AIDS Federation
We answer legal questions directly related to HIV by phone or in writing. We also take on legal representation in the area of social insurance law. Our services are free of charge.

The Legal Service is available: Tuesdays, 9 a.m.–12 p.m. and 2–4 p.m. | Thursdays, 9 a.m.–12 p.m. and 2–4 p.m.
Phone: 044 447 11 11 | Email: recht@aids.ch