Adult Representation and Powers of Attorney in Austria: How Erwachsenenvertretung Works

If an adult can no longer manage all their affairs because of illness or a similar reason, Austria’s adult representation system, known as Erwachsenenvertretung, may apply. The option that preserves the most personal autonomy is to grant a power of attorney in advance, known as a Vorsorgevollmacht, while still fully capable of making decisions.

Representation is an exception: from the age of 18, everyone is generally entitled to make their own decisions. Having a representative does not automatically remove the person’s ability to enter into valid transactions. The person can still act validly whenever they are capable of making the relevant decision.

When can adult representation be considered?

Adult representation may be relevant when an adult can no longer manage all their affairs because of a mental illness or a similar limitation affecting their decision-making ability, or when there is a risk that the person could suffer harm.

Support should be used up before representation is considered. Possible support includes:

• Help from family members or other close people
• Care institutions
• Organisations supporting people with disabilities
• Social services and advice centres
• A supervised bank account, known as a betreutes Konto

Only if these measures are not sufficient should representation follow. Information about social support can be obtained from the district authority, such as the Bezirkshauptmannschaft or Magistrat. Support options can also be discussed with an Erwachsenenschutzverein.

The four forms of representation

The forms are listed in order of priority. The less restrictive and more self-determined option should always be considered first.

• Advance power of attorney (Vorsorgevollmacht): granted by the person while they still have full decision-making capacity; valid for an unlimited period.
• Chosen adult representation (gewählte Erwachsenenvertretung): the person chooses a representative despite having reduced decision-making capacity; valid for an unlimited period.
• Statutory adult representation (gesetzliche Erwachsenenvertretung): the closest relatives agree on the representative; valid for 3 years and renewable.
• Court-appointed adult representation (gerichtliche Erwachsenenvertretung): the court appoints the representative; valid for 5 years and renewable.

All forms are recorded in the Austrian Central Representation Register, the Österreichisches Zentrales Vertretungsverzeichnis (ÖZVV), except for court-appointed representation. Court-appointed representation takes effect when the appointment order is served.

Advance powers of attorney: Vorsorgevollmacht

A Vorsorgevollmacht only takes effect when the person is no longer capable of making decisions in the matters covered by the power of attorney. The person granting it must have the capacity to enter into transactions. It must be granted in writing before a Notar, a Rechtsanwalt or, in simple cases and subject to available capacity, before an Erwachsenenschutzverein.

If special assets or legal expertise are involved, the power of attorney may only be granted before a legal professional.

Almost any adult can be appointed as the representative. Exceptions include a person who cannot properly manage their own affairs or someone who has a dependent relationship with the institution caring for the person concerned, such as a care worker at the facility.

For the power of attorney to take effect, the occurrence of the representation situation, known as the Vorsorgefall, must be registered in the ÖZVV with a medical certificate. If the person regains decision-making capacity, this must also be registered and the power of attorney is suspended. The power of attorney can be revoked at any time.

Chosen and statutory representation

Chosen adult representation

Gewählte Erwachsenenvertretung is intended for people who did not make arrangements in advance. The person only needs to understand in broad terms what it means to choose a representative.

The representative can be any trusted close adult, including a relative, friend or neighbour. A written agreement is required before a Notar, Rechtsanwalt or Erwachsenenschutzverein. The agreement can also provide that the representative may act only with the person’s consent. This is known as Mitentscheidung.

Statutory adult representation

Gesetzliche Erwachsenenvertretung may apply when the person can no longer choose a representative or does not want to do so. Only the closest relatives can act in this role:

• Parent or grandparent
• Adult child or grandchild
• Sibling
• Niece or nephew
• Spouse
• Registered partner
• Partner who has lived in the same household for at least three years
• A person named in an adult representative designation, known as an Erwachsenenvertreter-Verfügung

If the family cannot agree, court-appointed representation follows. If the person concerned objects, statutory representation cannot be registered. It is also possible to object in advance; the objection must be recorded in the ÖZVV.

Court-appointed representation and costs

The court appoints a representative only as a last resort and only for the matters that need to be handled. The procedure includes clarification by an Erwachsenenschutzverein, known as Clearing, a personal hearing and, where necessary, an expert opinion.

• Court procedure: free of charge.
• Expert opinion: paid by the person concerned. If income is very low or the procedure is discontinued, the state pays.
• Approval of the guardianship accounting (Pflegschaftsrechnung): at least 119 euros in court fees; an exemption may be possible.
• Payment to a court-appointed representative: generally 5% of net income, plus 2% of the amount exceeding 15,000 euros in assets.
• Receipt of a payment exceeding 10,000 euros: possible only with court authorisation.

An appeal against the order can be filed within 14 days. The costs of establishing a Vorsorgevollmacht, chosen representation or statutory representation depend on whether the matter is handled by a Notar, Rechtsanwalt or association.

What powers does a representative have?

A representative may decide only within their own area of responsibility and must act according to the wishes of the person concerned. This is known as the duty to establish the person’s wishes.

• A person who has decision-making capacity always decides for themselves about medical treatment.
• Marriage can only be entered into personally; representation is not possible.
• Anyone can vote, including a person who has a representative.
• A final move abroad always requires court approval, including where there is a Vorsorgevollmacht.
• The person may continue to enter into everyday minor transactions if they complete the transaction themselves and it does not exceed their normal living circumstances.

An adult representative must submit a report on the person’s living circumstances to the court within four weeks of starting and then once a year. This is not required in the case of a Vorsorgevollmacht.

Common questions

Does having a representative mean losing legal capacity?

Not automatically. A person who is capable of making a decision can continue to enter into valid transactions. The exception is where the court has imposed a Genehmigungsvorbehalt, requiring approval for specified matters.

Can a friend or neighbour become a representative?

Yes, for a Vorsorgevollmacht and chosen adult representation. For statutory representation, only the listed relatives and other eligible people can act.

When does representation end?

Representation ends when the person concerned or the representative dies, by court order, or when a revocation or termination is registered. Statutory representation automatically expires after three years and court-appointed representation after five years unless renewed.

How often must the representative meet the person?

If the representative is not dealing exclusively with legal or asset-management matters, they generally must meet the person in person at least once a month.

Practical steps

1. Consider whether family support, social services, a care organisation, an advice centre or a betreutes Konto could be sufficient.
2. If you still have full decision-making capacity, consider arranging a Vorsorgevollmacht.
3. Choose a trusted adult and arrange the written document before a Notar, Rechtsanwalt or, in simple cases, an Erwachsenenschutzverein.
4. Make sure the Vorsorgefall is registered in the ÖZVV with a medical certificate when the power of attorney needs to take effect.
5. If an advance arrangement is not possible, consider chosen or statutory adult representation before court-appointed representation.
6. For a court procedure, expect Clearing, a personal hearing and, if necessary, an expert opinion. Remember that an appeal against the order is possible within 14 days.

This article is based on information available online and does not constitute legal, medical or other professional advice. Use of the information is at your own responsibility. For advice about your situation, contact a lawyer, legal professional, healthcare professional or another relevant specialist.

Source: oesterreich.gv.at