Durable Power of Attorney
What happens if one day you are no longer capable of arranging your affairs yourself? Who takes care when you are getting old, or if you suffer from a disease? Who will assist you when you had a serious accident?
Who should manage your company if you are self-employed and are no longer able to do so yourself?
An enduring power of attorney is a power of attorney which, like an insurance policy, is granted as a precaution that will take effect at a later date. In other words, an enduring power of attorney cannot take effect until the donor, i.e. the individual concerned, is no longer able to make own decisions (referred to as the “Vorsorgefall”). The enduring power of attorney is considered a precautionary instrument.
The donor grants the power of attorney. The person to whom the power of attorney is granted is the representative.
Generally speaking, any adult who is suitable can be a representative, it is also possible to appoint several persons as representatives. Persons who appear not suitable for certain reasons, for example because they are insufficiently capable to take care of their own affairs, or because they are professionally dependant on the institution by which the person is taken care of (e.g. a care assistant in an institution).
It is advisable to authorise someone with whom the donor has already built a certain degree of trust. These can be relatives, friends, neighbours or other close persons.
The enduring power of attorney must be established in writing with a notary or lawyer. In simple cases, it can also be set up by an adult protection association.
How does an enduring power of attorney work?
In a first step, the enduring power of attorney is drafted after a consultative talk between donor and notary, individually tailored to the requirements of the donor. Then, the enduring power of attorney is drawn up by the notary with the donor and registered with the Central Austrian Representation Register (ÖZVV).
In a second step, the enduring power of attorney becomes effective, which is registered with the Central Austrian Representation Register as well.
What can be determined?
he scope of powers of the representative can be determined individually in the enduring power of attorney. Each kind of issue can be authorised individually, for example
- For a particular transaction such as the sale of property, or
- For particular issues, including shopping, asset management (such as saving or security funds) or transactions necessary to cover the needs regarding care and support, etc.
- The representative may then extensively represent the donor in all matters
Commencement and termination of the enduring power of attorney
Commencement and termination of the enduring power of attorney
The enduring power of attorney is initialised by the notary drawing it up. It becomes effective upon the occurrence of the so-called “Vorsorgefall”, i.e. the moment when the individual concerned loses the capability to make decisions in matters for which he or she has taken the provisions. Now, the authorised representative can make another appointment with the notary in order to register the effectiveness due to the occurrence of the insured event.
The enduring power of attorney terminates
- The enduring power of attorney terminates
- Upon death of the individual represented or upon death of the representative
- By a court decision, for example on grounds that the representative does not act in the in the best interest of the individual represented
- Upon registration of the notice of termination, revocation or discontinuation of the insured event in the Central Austrian Representation Register
The individual represented may revoke the enduring power of attorney any time. This must be registered with the notary. Enduring powers of attorney remain in force indefinitely.
What is the Austrian Central Representation Register (ÖZVV)?
The Representation Register is a central register in which all enduring powers of attorneys submitted by a notary or an attorney-at-law can be registered. Therein, it can also be registered when an enduring power of attorney becomes effective, who is appointed as your representative, by whom you do not want to be represented and should you decide to revoke the enduring power of attorney. By registering with the Representation Register, the court can immediately determine whether an enduring power of attorney is registered or not.
What happens if no enduring power of attorney is granted?
Based on the legal incapacity of the individual concerned, an adult representative is appointed by court. This representative acts on behalf of the individual represented and takes care of the legal matters for which they have been determined by court. Representation is often requested by public authorities, banks, hospitals or residential homes as safeguarding measures in financial or medical matters.
How much does it cost to draw up an enduring power of attorney?
The costs are determined on the individual case, we will be happy to advise you in this regard. In any case, you take no risk because the first legal information is free of charge. During this initial meeting we can also discuss the expected costs and time frame. Whether the authorised representative is also entitled to reimbursement of expenses or remuneration for their costs incurred or activities resulting from this representation can be determined individually in the power of attorney. For this purpose, the rules of the general right to representation apply.
What happens if I do not have a power of attorney?
Should you lose your capability of decision-making but have not appointed a representative and in case a difficult situation arises, you will need to switch to the statutory representation. In this case, many issues including housekeeping, organising care services or consenting to medical treatment, may still be taken care of by close relatives, but this requires a rather complex assessment and registration. In this case, the guardianship court is involved as well and additional costs incur due to the supervision of the court.
The allocation of a court-appointed representative is intended as a last resort which is used in absence of any other regulation including statutory representation, representation by an enduring power of attorney, family or psychosocial services.
Transitional period – former legal framework
Enduring powers of attorney validly established until 30 June 2018 (former enduring powers of attorney) remain in force. If the insured case occurs after 30 June 2018, it has to be registered with the Austrian Central Representation Register under the former enduring powers of attorney.
If a former enduring power of attorney has been voluntarily registered with the Austrian Central Representation Register it is treated as if the registration had taken place after 30 June 2018.In the case of already effective former powers of attorney which have not been registered in the Austrian Central Representation Register, the power of representation continues to exist even without registration.
Rights and obligations associated with the enduring power of attorney:
- Rights and obligations at the beginning and end of the power of representation
From the beginning to the end of the termination of the enduring power of attorney, the representative is authorised, within his or sphere of action, to effectively perform acts of representation for the individual represented. The sphere of action is determined in the written enduring power of attorney. The enduring power of attorney becomes effective if and to the extent to which the occurrence of the insured event is registered with the Austrian Central Register of Representatives. As long as the power of representation of a representative is registered with the Austrian Central Register of Representatives, it continues to exist even if the individual represented is capable of acting within the scope of his representative or regains his or capacity to act. The power of representation of the representative terminates upon revocation of the enduring power of representation, or upon the loss of the insured event being registered with the Austrian Central Register of Representatives, as well as upon death of the donor or representative, or upon a court decision.
A representative is obliged to retain the certificate of the enduring power of attorney as well as the medical certificates required according to Section 140h of the Notaries Act until termination of the representation and to submit them to the court upon the court’s request In case of a change of representation within the sphere of action of the representative, the said representative is obliged to transfer the assets and all documents and evidence relating to the individual represented to the new representative.
After termination of the enduring power of representation, the representative is obliged to no longer use the confirmation of registration with the Austrian Central Register of Representatives (register excerpt) in legal transactions. The assets and all documents and evidence relating to the individual represented shall be transmitted to the individual represented, except in case of a change of representation.
- General rights and obligations
The representative needs to ensure that the individual represented can, within the limits of the individual abilities and possibilities, arrange his living conditions according to the individual wishes and ideas and, as far as possible, enable him to take care of his own affairs.
The representative shall inform the individual represented person in due time of any intended decisions concerning his person or property and allow him to comment them within an appropriate time frame. The statement of the individual represented shall be taken into account unless his well-being would be seriously endangered thereby.
Except vis-à-vis the guardianship court, the representative is obliged to maintain secrecy regarding all facts entrusted or disclosed to him/her in the exercise of his function. However, upon request, the representative must provide spouses, registered partners or life partners as well as parents and children of the individual represented with information on the donor’s mental and physical condition, place of residence as well as on their sphere of action. This does not apply if the individual represented has enacted something else or indicates that he/she does not want such information to be given, or that it is contrary to his best interests. Furthermore, a representative is not obliged to secrecy if the individual represented has released him from this obligation provided that this is part of the individual representative’s sphere of action, if the individual represented is obliged to disclose the information, or if disclosure is necessary for the protection of his well-being.
A representative is liable to the individual represented for any damage caused by his fault.
- Rights and obligations in personal matters
A representative may only act in personal matters provided that these are within his sphere of action, that the individual represented is not capable of making decisions, that the law does not in any case exclude the possibility of a representative being appointed and provided that an act of representation is necessary to safeguard the well-being of the individual represented. If the individual represented indicates that he rejects the intended act of representation, this shall be omitted in the event of other legal invalidity, unless the well-being of the individual represented would otherwise be seriously endangered.
The right of the individual represented to the personal contact and correspondence with other persons may only be restricted by the representative if his well-being would otherwise be seriously endangered.
A person of legal age can only decide on a change of place of residence himself provided he is capable to make a decision. If this is not the case, the representative whose sphere of action includes this matter shall take the decision if this is necessary to safeguard the well-being of the individual represented. If the place of residence of the individual represented is to be permanently transferred abroad, a prior court approval is required. The place of residence of the individual represented may be changed until a court decision has been rendered, provided that a return is possible.
- Particular cases: Consent to medical treatment, sterilization, medical research
If the representative’s scope of action also includes to consent to these particular cases, the following rights and obligations must be observed:
Medical treatment on a person of legal age who is not capable of making decisions requires the consent of his representative, whose scope of action includes this matter. The representative needs to act on behalf of the individual represented. In case of doubt, it is to be assumed that the individual represented wishes to receive medically indicated treatment. If a person unable to make decisions indicates to his representative or to the doctor that he refuses medical treatment or its continuation. The consent of the representative for treatment requires an approval of the court.
A representative is not allowed to consent to a medical measure which would result in the permanent inability to reproduce for the individual represented who is not capable of decision-making, unless there is a life threatening risk, or a risk of serious health damage or severe pain as a result of permanent physical suffering. The consent of the representative requires the approval of the court. A representative is not allowed to consent to medical research that involves an impairment of the physical integrity or personality of the individual represented who is not capable of decision-making, unless such research can be of direct benefit to the health or well-being of that individual and provided that a favourable opinion has been obtained from an ethics committee set up for the relevant hospital, or the consent of the representative has been granted by a court.
- If a representative is also entrusted with the management of the assets or income of the individual represented,
the provisions on gilt-edged investment in accordance with sections 215 to 221 of the Austrian Civil Code (ABGB) shall apply, insofar as this has been provided for in the enduring power of attorney.
Binding Living Will
For the purpose of a binding living will the rejected measures need to be described in detail and the patient needs to be able to correctly assess the effects of the living will.
A binding living will is to be recorded in writing, stating the date of issue, before a Civil Law Notary, an attorney-at-law or a legally qualified patient representative. Before that, however, the patient is to be informed in detail about the nature and the effects of the living will. The information provided by the doctors has to be recorded as well.
A living will is valid for a period of eight years only and has to be reconfirmed after that period. However, if the patient is only insufficiently able to judge or to speak and thus unable to renew the living will, it remains effective.