Durable Power of Attorney

Gen­er­al inform­a­tion | Bene­fits and advant­ages | Require­ments to be a donor or attor­ney | How to make a last­ing power of attor­ney | Con­tent | Form­al require­ments | Leg­al basis | Dur­a­tion | Scope | Costs | Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV) | Con­sequences of the fail­ure to make a last­ing power of attor­ney | Bind­ing liv­ing will | FAQ

General information

What hap­pens if one day you are no longer able to man­age your own affairs? Who will take care of you when you are sick or old and no longer able to take care of your­self? If you had a ser­i­ous acci­dent, who should stand by you? Who should run your busi­ness if you are self-employed and no longer able to run it your­self? Who should man­age your fin­ances if you are no longer able to do it yourself?

A last­ing power of attor­ney is a pre­cau­tion­ary instru­ment that will become effect­ive only when a per­son is no longer able to act or make a decision. Thus, a last­ing power of attor­ney should become effect­ive only if the donor, i.e. the per­son con­cerned, loses the capa­city required to make a decision with respect to the entrus­ted mat­ters. A last­ing power of attor­ney is sub­ject to the con­di­tion pre­ced­ent of an “event of inca­pa­city” (Vor­sorge­fall). There­fore, a last­ing power of attor­ney is a power of attor­ney which, like an insur­ance policy, is gran­ted as a pre­cau­tion in case it should take effect at a later date.

Gen­er­al inform­a­tion | Bene­fits and advant­ages | Require­ments to be a donor or attor­ney | How to make a last­ing power of attor­ney | Con­tent | Form­al require­ments | Leg­al basis | Dur­a­tion | Scope | Costs | Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV) | Con­sequences of the fail­ure to make a last­ing power of attor­ney | Bind­ing liv­ing will | FAQ

Benefits and advantages

A last­ing power of attor­ney should be made by all per­sons who, in the event of a loss of their leg­al and men­tal capa­cit­ies, wish to avoid that the court appoints a guard­i­an (for adults) (Erwach­sen­en­ver­treter, formerly a Sach­wal­ter) to man­age their per­son­al affairs on their behalf.

With a last­ing power of attor­ney, the donor can appoint a trus­ted per­son (or sev­er­al trus­ted per­sons) to rep­res­ent him or her in cer­tain mat­ters. The scope of such mat­ters is defined in the last­ing power of attor­ney by the donors themselves.

If the court is of the opin­ion that there is still a need for a court-appoin­ted guard­i­an, the donor him­self or her­self has the option to choose in the last­ing power of attor­ney the per­son who shall act (or not act) as a guard­i­an (Erwach­sen­en­ver­treter-Ver­fü­gung).

In the event that neither a last­ing power of attor­ney has been made nor a guard­i­an has been des­ig­nated (or excluded, as applic­able) by the donor, it is in the sole dis­cre­tion of the court to choose the per­son who shall act as a guard­i­an and appoint the same.

Gen­er­al inform­a­tion | Bene­fits and advant­ages | Require­ments to be a donor or attor­ney | How to make a last­ing power of attor­ney | Con­tent | Form­al require­ments | Leg­al basis | Dur­a­tion | Scope | Costs | Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV) | Con­sequences of the fail­ure to make a last­ing power of attor­ney | Bind­ing liv­ing will | FAQ

Requirements to be a donor or attorney

In prin­ciple, any per­son who has reached the age of 18 and does not lack leg­al or men­tal capa­city can become a donor or attorney.

Donors may also appoint sev­er­al per­sons to act as their attor­neys. Per­sons who, for spe­cif­ic reas­ons, appear ineligible shall be excluded from act­ing as attorneys:

• per­sons who can­not be expec­ted to act in the best interest of the donor (e.g. crim­in­al convictions),
• per­sons who are either in a depend­ent rela­tion­ship or oth­er­wise closely con­nec­ted with a hos­pit­al, nurs­ing or retire­ment home or oth­er insti­tu­tion in which the donor lives or where the donor receives care, or
• per­sons who have already been gran­ted up to 15 last­ing powers of attorney.

It is advis­able to author­ise someone with whom the donor already has a cer­tain rela­tion­ship of trust. These can be rel­at­ives, friends, neigh­bours or oth­er close persons.

Gen­er­al inform­a­tion | Bene­fits and advant­ages | Require­ments to be a donor or attor­ney | How to make a last­ing power of attor­ney | Con­tent | Form­al require­ments | Leg­al basis | Dur­a­tion | Scope | Costs | Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV) | Con­sequences of the fail­ure to make a last­ing power of attor­ney | Bind­ing liv­ing will | FAQ

How to make a lasting power of attorney

In a first step and fol­low­ing the donor’s con­sulta­tion with a civil law not­ary, the last­ing power of attor­ney is draf­ted to suit the needs and wishes of the donor.
Then the last­ing power of attor­ney is signed by the donor and the attor­ney and recor­ded by the civil law not­ary before being registered with the Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV). Only in a second step, which may nev­er occur (= loss of leg­al and men­tal capa­cit­ies), will the last­ing power of attor­ney become effect­ive (= occur­rence of the event of inca­pa­city). The grounds for the last­ing power of attorney’s tak­ing effect must be con­firmed by a phys­i­cian by means of a med­ic­al cer­ti­fic­ate and registered in the ÖZVV.

A last­ing power of attor­ney is not lim­ited in time.

It ends:

• upon the death of the per­son rep­res­en­ted or upon the death of the attorney(s);
• if the court so decides, for example, because the attor­ney is not act­ing in the best interests of the per­son rep­res­en­ted; or
• upon regis­tra­tion of the ter­min­a­tion, revoc­a­tion or ces­sa­tion of the event of inca­pa­city in the ÖZVV (Aus­tri­an Cent­ral Register of Representation).

The per­son rep­res­en­ted may revoke the last­ing power of attor­ney at any time. Any revoc­a­tion must be registered by the civil law not­ary in the Aus­tri­an Cent­ral Register of Representation.

Gen­er­al inform­a­tion | Bene­fits and advant­ages | Require­ments to be a donor or attor­ney | How to make a last­ing power of attor­ney | Con­tent | Form­al require­ments | Leg­al basis | Dur­a­tion | Scope | Costs | Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV) | Con­sequences of the fail­ure to make a last­ing power of attor­ney | Bind­ing liv­ing will | FAQ

Content

The attorney’s respons­ib­il­it­ies may be reg­u­lated indi­vidu­ally in the last­ing power of attor­ney. The power of rep­res­ent­a­tion may be gran­ted with respect to spe­cif­ic mat­ters or mat­ters of a cer­tain kind, that is, for instance, with respect to a spe­cif­ic trans­ac­tion, such as the sale of a prop­erty, or to gen­er­al mat­ters, such as pur­chases, the man­age­ment of assets (such as sav­ings or secur­it­ies funds) or trans­ac­tions to cov­er the need for care and sup­port, etc., or to the greatest extent pos­sible, author­ising the attor­ney to rep­res­ent the donor in all sorts of matters.

Typ­ic­al pro­vi­sions of last­ing powers of attor­ney include:

• the author­isa­tion to carry out (all or only parts of) the trans­ac­tions referred to in sec­tion 1008 of the Aus­tri­an Civil Code (ABGB) (includ­ing but not lim­ited to selling and pur­chas­ing objects, grant­ing and tak­ing out loans, receiv­ing money or money’s worth, ini­ti­at­ing leg­al pro­ceed­ings, con­clud­ing set­tle­ments of all kinds, assum­ing guar­an­tees, mak­ing an uncon­di­tion­al declar­a­tion of accept­ance of an inher­it­ance or renoun­cing the right to suc­ceed, mak­ing declar­a­tions of assets, adopt­ing art­icles of asso­ci­ation, mak­ing gifts or dona­tions, enter­ing into arbit­ra­tion agree­ments, choos­ing arbit­rat­ors and relin­quish­ing rights without compensation);
• pro­vi­sions on med­ic­al treatments;
• pro­vi­sions on any change of res­id­ence and the con­clu­sion of care home contracts;
• pro­vi­sions on rep­res­ent­a­tion in bank­ing and insur­ance matters;
• pro­vi­sions on rep­res­ent­a­tion in mat­ters involving author­it­ies or the courts;
• the dis­pos­i­tion of real estate;
• a power of attor­ney for the receipt of postal items;
• digit­al con­tent; and
• data pro­tec­tion rights.

Fur­ther­more, spe­cial pro­vi­sions con­cern­ing rep­res­ent­a­tion in cor­por­ate mat­ters (e.g. sole pro­pri­et­or­ship, gen­er­al part­ner­ship (OG), lim­ited part­ner­ship (KG), com­pany with lim­ited liab­il­ity (GmbH), pub­lic lim­ited com­pany (AG), private found­a­tion, etc.), for instance, may be included.

Gen­er­al inform­a­tion | Bene­fits and advant­ages | Require­ments to be a donor or attor­ney | How to make a last­ing power of attor­ney | Con­tent | Form­al require­ments | Leg­al basis | Dur­a­tion | Scope | Costs | Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV) | Con­sequences of the fail­ure to make a last­ing power of attor­ney | Bind­ing liv­ing will | FAQ

Formal requirements

The last­ing power of attor­ney must be in writ­ten form and signed in per­son by the donor before a civil law not­ary, a law­yer or an adult pro­tec­tion association.

The donor must be per­son­ally informed about

• the leg­al con­sequences of a last­ing power of attorney,
• the option to exclude the del­eg­a­tion of the last­ing power of attor­ney in gen­er­al or in rela­tion to spe­cif­ic mat­ters, or to provide for joint rep­res­ent­a­tion by two or more attor­neys, and
• the pos­sib­il­ity of revok­ing the last­ing power of attor­ney at any time.

The civil law not­ary, the law­yer or an author­ised employ­ee of the adult pro­tec­tion asso­ci­ation must record in the signed power of attor­ney the fact that the donor has been duly informed.

The last­ing power of attor­ney must be entitled as such and con­tain the full data (name, date of birth, address) of both the donor and the attorney.

Gen­er­al inform­a­tion | Bene­fits and advant­ages | Require­ments to be a donor or attor­ney | How to make a last­ing power of attor­ney | Con­tent | Form­al require­ments | Leg­al basis | Dur­a­tion | Scope | Costs | Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV) | Con­sequences of the fail­ure to make a last­ing power of attor­ney | Bind­ing liv­ing will | FAQ

Legal basis

The reg­u­la­tions on last­ing powers of attor­ney can be found in par­tic­u­lar in sec­tions 260 ff of the Aus­tri­an Civil Code (ABGB). They include pro­vi­sions on the event of inca­pa­city, the scope of rep­res­ent­a­tion, the form­al require­ments and regis­tra­tion of the last­ing power of attorney.

Gen­er­al inform­a­tion | Bene­fits and advant­ages | Require­ments to be a donor or attor­ney | How to make a last­ing power of attor­ney | Con­tent | Form­al require­ments | Leg­al basis | Dur­a­tion | Scope | Costs | Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV) | Con­sequences of the fail­ure to make a last­ing power of attor­ney | Bind­ing liv­ing will | FAQ

Duration

Upon the donor becom­ing men­tally inca­pa­cit­ated, the “event of inca­pa­city” arises and, after regis­tra­tion of this fact with the Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV), causes the last­ing power of attor­ney to take effect. The event of inca­pa­city must be proven by the author­ity mak­ing the regis­tra­tion by means of an appro­pri­ate med­ic­al cer­ti­fic­ate. The regis­tra­tion is imper­at­ive and required for mak­ing the last­ing power of attor­ney effective.

Apart from a last­ing power of attor­ney, which in order to become effect­ive requires the occur­rence of an event of inca­pa­city and the regis­tra­tion of such event with the Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion, there is the pos­sib­il­ity of com­bin­ing the last­ing power of attor­ney with a power of attor­ney. Such a com­bined power of attor­ney author­ises the attor­ney to rep­res­ent the donor already upon sign­ing of the doc­u­ment. It remains effect­ive even after the occur­rence of the event of inca­pa­city and, as men­tioned above, must be registered as a last­ing power of attor­ney in the Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV) at the time the event arises.

The advant­age of such a com­bined power of attor­ney is that, in urgent cases, rep­res­ent­a­tion by the attor­ney is pos­sible without the loss of the donor’s leg­al and men­tal capacities.

Gen­er­al inform­a­tion | Bene­fits and advant­ages | Require­ments to be a donor or attor­ney | How to make a last­ing power of attor­ney | Con­tent | Form­al require­ments | Leg­al basis | Dur­a­tion | Scope | Costs | Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV) | Con­sequences of the fail­ure to make a last­ing power of attor­ney | Bind­ing liv­ing will | FAQ

Scope

From the time the last­ing power of attor­ney becomes effect­ive until its ter­min­a­tion, the attor­ney is author­ised, with­in the scope of his or her author­ity, to effect­ively rep­res­ent the donor. The scope of the attorney’s author­ity is defined in writ­ing in the last­ing power of attorney.
The last­ing power of attor­ney becomes effect­ive when, and to the extent that, the occur­rence of the event of inca­pa­city has been entered in the Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion. As long as an attorney’s power of rep­res­ent­a­tion is entered in the Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion, it con­tin­ues to be val­id even if the per­son rep­res­en­ted is, or becomes, able to act in the sphere of action of his or her rep­res­ent­at­ive. The attorney’s power of rep­res­ent­a­tion ends when a revoc­a­tion or ter­min­a­tion of the last­ing power of attor­ney or the ces­sa­tion of the event of inca­pa­city is entered in the Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion, or upon the death of the donor or the attor­ney or by a court decision.

Gen­er­al inform­a­tion | Bene­fits and advant­ages | Require­ments to be a donor or attor­ney | How to make a last­ing power of attor­ney | Con­tent | Form­al require­ments | Leg­al basis | Dur­a­tion | Scope | Costs | Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV) | Con­sequences of the fail­ure to make a last­ing power of attor­ney | Bind­ing liv­ing will | FAQ

Costs

The costs of draw­ing up a last­ing power of attor­ney depend on the indi­vidu­al case. We will be happy to advise you. There is no risk involved: because the first leg­al advice is free of charge.

Dur­ing such a first con­sulta­tion, we can also dis­cuss the expec­ted costs and the time frame.

Gen­er­al inform­a­tion | Bene­fits and advant­ages | Require­ments to be a donor or attor­ney | How to make a last­ing power of attor­ney | Con­tent | Form­al require­ments | Leg­al basis | Dur­a­tion | Scope | Costs | Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV) | Con­sequences of the fail­ure to make a last­ing power of attor­ney | Bind­ing liv­ing will | FAQ

ÖZVV — Austrian Central Register of Representation

Upon its sign­ing, the last­ing power of attor­ney must be registered with the Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV — Öster­reichisches Zen­t­rales Ver­tre­tugns­verzeich­nis). It becomes effect­ive once the event of inca­pa­city, i.e. the loss of the donor’s leg­al and men­tal capa­cit­ies, arises. The effect­ive date of the last­ing power of attor­ney must also be registered with the ÖZVV by sub­mit­ting a med­ic­al certificate.

The Aus­tri­an Register of Rep­res­ent­a­tion may be inspec­ted by the courts, the regis­ter­ing author­it­ies (i.e. not­ar­ies offices, law firms, adult pro­tec­tion asso­ci­ations), social secur­ity insti­tu­tions and wel­fare authorities.

Both the per­son rep­res­en­ted and the rep­res­ent­at­ive are also entitled to inspect the ÖZVV (via the regis­ter­ing author­it­ies). All oth­er per­sons must file a writ­ten applic­a­tion with the court and prove the leg­al basis for their interest.

Gen­er­al inform­a­tion | Bene­fits and advant­ages | Require­ments to be a donor or attor­ney | How to make a last­ing power of attor­ney | Con­tent | Form­al require­ments | Leg­al basis | Dur­a­tion | Scope | Costs | Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV) | Con­sequences of the fail­ure to make a last­ing power of attor­ney | Bind­ing liv­ing will | FAQ

Consequences of the failure to make a lasting power of attorney

If no last­ing power of attor­ney has been made and you are no longer in a pos­i­tion to make one, the only remain­ing option is rep­res­ent­a­tion by a guard­i­an (for adults). Depend­ing on the cir­cum­stances, a dis­tinc­tion is made between rep­res­ent­a­tion by a guard­i­an appoin­ted by the per­son to be rep­res­en­ted, a guard­i­an appoin­ted on the basis of the law (close rel­at­ives as reg­u­lated in sec­tions 260 ff of the Aus­tri­an Civil Code) or a guard­i­an appoin­ted by the court (gewählte, geset­z­liche oder gericht­liche Erwach­sen­en­ver­tre­tung). In each of these cases, the court is involved and, in many cases, required to approve the guardian’s powers of rep­res­ent­a­tion. The guard­i­an also has a num­ber of report­ing obligations.

Gen­er­al inform­a­tion | Bene­fits and advant­ages | Require­ments to be a donor or attor­ney | How to make a last­ing power of attor­ney | Con­tent | Form­al require­ments | Leg­al basis | Dur­a­tion | Scope | Costs | Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV) | Con­sequences of the fail­ure to make a last­ing power of attor­ney | Bind­ing liv­ing will | FAQ

(Binding) Living Will

Gen­er­al information
On 1 June 2006, the Liv­ing Wills Act (Patien­ten­ver­fü­gungs-Gesetz; PatVG) came into effect. If a per­son is no longer able to make decisions, the patient’s will can­not be determ­ined. What pre­cau­tions can I take now so that decisions are made in accord­ance with my wishes and pref­er­ences in the event that I am no longer able to make my own decisions?

Con­tent of a liv­ing will

In a liv­ing will, the patient can spe­cify in advance (= declar­a­tion of will) that a spe­cif­ic med­ic­al treat­ment may not be per­formed if he or she is not able to make decisions at the time of the treat­ment. Hence, in a liv­ing will it can be spe­cified what med­ic­al treat­ments the per­son con­cerned expli­citly refuses.
The med­ic­al treat­ments refused have to be described in spe­cif­ic terms or appear clearly from the over­all con­text of the will. Gen­er­al pro­vi­sions such as “I do not wish any life-sus­tain­ing treat­ment” are effect­ively of no use.

Dif­fer­ence between bind­ing and rel­ev­ant (non-bind­ing) liv­ing will

After it has been drawn up, a liv­ing will is bind­ing for eight years unless the patient has determ­ined a short­er peri­od. The require­ments for a bind­ing liv­ing will are explained below. The will of the party has to be defined pre­cisely so that there is no room for inter­pret­a­tion for the attend­ing phys­i­cian and he or she is bound by the con­tent of the liv­ing will.
After the expiry of that peri­od, the liv­ing will becomes “rel­ev­ant” (or “non-bind­ing”).
The rel­ev­ant liv­ing will should only help phys­i­cians in their decision-mak­ing when the per­son con­cerned is no longer able to make his or her own decisions. The phys­i­cian has to take it into account and record the fact of con­sid­er­ing it but is not obliged to strictly adhere to its content.
When the liv­ing will is no longer “bind­ing”, i.e. when the above peri­od has expired, it can be renewed after con­sulta­tion with a phys­i­cian. The peri­od of a max­im­um of eight years then begins anew.

Con­sulta­tion
Before a bind­ing liv­ing will may be drawn up, the con­sul­ted phys­i­cian must provide com­pre­hens­ive inform­a­tion, includ­ing inform­a­tion about the nature and con­sequences of the liv­ing will. He or she sub­sequently has to con­firm by hand­writ­ten sig­na­ture that the required inform­a­tion has been provided and that the per­son con­cerned is able to make decisions. Togeth­er with the patient, the phys­i­cian defines in spe­cif­ic terms what treat­ments are refused by the patient under what conditions.

Draw­ing up a liv­ing will
A liv­ing will is required to be drawn up:

• after con­sult­ing a physician,
• in writ­ing,
• indic­at­ing the date,
• before a civil law notary,
• or a lawyer,
• or a leg­ally qual­i­fied employ­ee of the rel­ev­ant patient rep­res­ent­at­ive organisation,
• or a leg­ally qual­i­fied employ­ee of an adult pro­tec­tion association,

and the per­son con­cerned has to be informed about the con­sequences of a bind­ing liv­ing will and the pos­sib­il­ity to revoke it at any time. The liv­ing will has to be signed by hand by the per­son mak­ing the liv­ing will, indic­at­ing his or her name and address. Fur­ther­more, the liv­ing will has to be signed by the phys­i­cian and the civil law notary/lawyer/ leg­ally qual­i­fied person.

Dif­fer­ence between a liv­ing will and a last­ing power of attorney
With a liv­ing will, you can refuse cer­tain med­ic­al treat­ments for some point in the future when you are no longer able to make decisions.
You have to bear in mind that you refuse cer­tain med­ic­al treat­ments at some point (in the past) when the type of the (future) dis­ease and its extent (prob­ably) can­not yet be evaluated.
Fur­ther­more, it is uncer­tain how medi­cine will pro­gress in the future. It is dif­fi­cult to tell now what new med­ic­al treat­ments will be avail­able in the future. It is pos­sible that cases which are ter­min­al today will no longer be ter­min­al in the future, and the refus­al of cer­tain med­ic­al treat­ments would no longer reflect the wishes and pref­er­ences of the per­son concerned.
Con­trary to a liv­ing will, a last­ing power of attor­ney reg­u­lates who should decide for you if you are no longer able to make your own decisions. Unlike a liv­ing will, in which spe­cif­ic meas­ures are refused, the attor­ney appoin­ted in the last­ing power of attor­ney is gen­er­ally author­ised to act at his or her own discretion.

Gen­er­al inform­a­tion | Bene­fits and advant­ages | Require­ments to be a donor or attor­ney | How to make a last­ing power of attor­ney | Con­tent | Form­al require­ments | Leg­al basis | Dur­a­tion | Scope | Costs | Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV) | Con­sequences of the fail­ure to make a last­ing power of attor­ney | Bind­ing liv­ing will | FAQ

FAQ — Questions and Answers

1. What is a last­ing power of attor­ney and why do I need one?
A last­ing power of attor­ney is a pre­cau­tion­ary instru­ment that will become effect­ive only when a per­son is no longer able to act or make a decision. Thus, a last­ing power of attor­ney should become effect­ive only if the donor, i.e. the per­son con­cerned, loses the capa­city required to make a decision with respect to the entrus­ted mat­ters. A last­ing power of attor­ney is sub­ject to the con­di­tion pre­ced­ent of an “event of inca­pa­city” (Vor­sorge­fall). There­fore, a last­ing power of attor­ney is a power of attor­ney which, like an insur­ance policy, is gran­ted as a pre­cau­tion in case it should take effect at a later date.

2. Why should I make a last­ing power of attorney?

A last­ing power of attor­ney should be made by all per­sons who, in the event of a loss of their leg­al and men­tal capa­cit­ies, wish to avoid that the court appoints a guard­i­an (for adults) (Erwach­sen­en­ver­treter, formerly a Sach­wal­ter) to man­age their per­son­al affairs on their behalf. With a last­ing power of attor­ney, the donor can appoint a trus­ted per­son (or sev­er­al trus­ted per­sons) to rep­res­ent him or her in cer­tain mat­ters. The scope of such mat­ters is defined in the last­ing power of attor­ney by the donors themselves.

3. Who can make a last­ing power of attorney?
In prin­ciple, any per­son who has reached the age of 18 and has leg­al and men­tal capa­cit­ies can become a donor or attor­ney. Donors may also appoint sev­er­al per­sons to act as their attorneys.

4.What are the steps to a last­ing power of attorney?
The last­ing power of attor­ney is signed by the donor and the attor­ney and recor­ded by the civil law not­ary before being registered with the Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV). Upon the donor’s los­ing his or her leg­al and men­tal capa­cit­ies and sub­mis­sion of an appro­pri­ate med­ic­al cer­ti­fic­ate, the last­ing power of attor­ney becomes effect­ive (= occur­rence of the event of inca­pa­city). The grounds for the last­ing power of attorney’s tak­ing effect must be registered with the ÖZVV.

5. What powers can be con­ferred by a last­ing power of attorney?
The attorney’s respons­ib­il­it­ies may be reg­u­lated indi­vidu­ally in the last­ing power of attor­ney. The power of rep­res­ent­a­tion may be gran­ted with respect to spe­cif­ic mat­ters or mat­ters of a cer­tain kind, that is, for instance, with respect to a spe­cif­ic trans­ac­tion, such as the sale of a prop­erty, or to gen­er­al mat­ters, such as pur­chases, the man­age­ment of assets (such as sav­ings or secur­it­ies funds) or trans­ac­tions to cov­er the need for care and sup­port, etc., or to the greatest extent pos­sible, author­ising the attor­ney to rep­res­ent the donor in all sorts of matters.

6. What pro­vi­sions are typ­ic­ally included in a last­ing power of attorney?
Typ­ic­al pro­vi­sions of last­ing powers of attor­ney include:

• the author­isa­tion to carry out (all or only parts of) the trans­ac­tions referred to in sec­tion 1008 of the Aus­tri­an Civil Code (ABGB) (includ­ing but not lim­ited to selling and pur­chas­ing objects, grant­ing and tak­ing out loans, receiv­ing money or money’s worth, ini­ti­at­ing leg­al pro­ceed­ings, con­clud­ing set­tle­ments of all kinds, assum­ing guar­an­tees, mak­ing an uncon­di­tion­al declar­a­tion of accept­ance of an inher­it­ance or renoun­cing the right to suc­ceed, mak­ing declar­a­tions of assets, adopt­ing art­icles of asso­ci­ation, mak­ing gifts or dona­tions, enter­ing into arbit­ra­tion agree­ments, choos­ing arbit­rat­ors and relin­quish­ing rights without compensation);
• pro­vi­sions on med­ic­al treatments;
• pro­vi­sions on any change of res­id­ence and the con­clu­sion of care home contracts;
• pro­vi­sions on rep­res­ent­a­tion in bank­ing and insur­ance matters;
• pro­vi­sions on rep­res­ent­a­tion in mat­ters involving author­it­ies or the courtst;
• the dis­pos­i­tion of real estate;
• a power of attor­ney for the receipt of postal items;
• digit­al con­tent; and
• data pro­tec­tion rights.

7. What are the form­al requirements?
The last­ing power of attor­ney must be in writ­ten form and signed in per­son by the donor before a civil law not­ary, a law­yer or an adult pro­tec­tion asso­ci­ation. The not­ary, the law­yer or an author­ised employ­ee of the adult pro­tec­tion asso­ci­ation must instruct the parties and record such instruc­tion in the last­ing power of attor­ney document.

8. What is the leg­al basis for a last­ing power of attorney?
The reg­u­la­tions on last­ing powers of attor­ney can be found in par­tic­u­lar in sec­tions 260 ff of the Aus­tri­an Civil Code (ABGB). They include pro­vi­sions on the event of inca­pa­city, the scope of rep­res­ent­a­tion, the form­al require­ments and regis­tra­tion of the last­ing power of attorney.

9. When does a last­ing power of attor­ney come into force?
Upon the donor becom­ing men­tally inca­pa­cit­ated, the “event of inca­pa­city” arises and, after regis­tra­tion of this fact with the Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV), causes the last­ing power of attor­ney to take effect. The event of inca­pa­city must be proven by the author­ity mak­ing the regis­tra­tion by means of an appro­pri­ate med­ic­al cer­ti­fic­ate. The regis­tra­tion is imper­at­ive and required for mak­ing the last­ing power of attor­ney effective

10. What is an imme­di­ately effect­ive (last­ing) power of attorney?

Apart from a last­ing power of attor­ney, which in order to become effect­ive requires the occur­rence of an event of inca­pa­city and the regis­tra­tion of such event with the Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion, there is the pos­sib­il­ity of com­bin­ing the last­ing power of attor­ney with a power of attor­ney. Such a com­bined power of attor­ney author­ises the attor­ney to rep­res­ent the donor already upon sign­ing of the doc­u­ment. It remains effect­ive even after the occur­rence of the event of inca­pa­city and, as men­tioned above, must be registered as a last­ing power of attor­ney in the Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV) at the time the event arises.
The advant­age of such a com­bined power of attor­ney is that, in urgent cases, rep­res­ent­a­tion by the attor­ney is pos­sible without the loss of the donor’s leg­al and men­tal capacities.

11. Does the author­ised rep­res­ent­at­ive have an oblig­a­tion to act?

From the time the last­ing power of attor­ney becomes effect­ive until its ter­min­a­tion, the attor­ney is author­ised, with­in the scope of his or her author­ity, to effect­ively rep­res­ent the donor. The scope of the attorney’s author­ity is defined in writ­ing in the last­ing power of attorney.
The last­ing power of attor­ney becomes effect­ive when, and to the extent that, the occur­rence of the event of inca­pa­city has been entered in the Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion. As long as an attorney’s power of rep­res­ent­a­tion is entered in the Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion, it con­tin­ues to be val­id even if the per­son rep­res­en­ted is, or becomes, able to act in the sphere of action of his or her rep­res­ent­at­ive. The attorney’s power of rep­res­ent­a­tion ends when a revoc­a­tion or ter­min­a­tion of the last­ing power of attor­ney or the ces­sa­tion of the event of inca­pa­city is entered in the Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion, or upon the death of the donor or the attor­ney or by a court decision.

12. What are the costs of a last­ing power of attorney?
The costs of draw­ing up a last­ing power of attor­ney depend on the indi­vidu­al case. We will be happy to advise you.

Con­tact us for a free ini­tial con­sulta­tion (max. dur­a­tion: 30 minutes).

13. Where can I find the last­ing power of attorney?

Upon its sign­ing, the last­ing power of attor­ney must be registered with the Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV).
The Aus­tri­an Register of Rep­res­ent­a­tion may be inspec­ted by the courts, the regis­ter­ing author­it­ies (i.e. not­ar­ies offices, law firms, adult pro­tec­tion asso­ci­ations), social secur­ity insti­tu­tions and wel­fare authorities

14. What hap­pens if I do not make a last­ing power of attorney?
If no last­ing power of attor­ney has been made and you are no longer in a pos­i­tion to make one, the only remain­ing option is rep­res­ent­a­tion by a guard­i­an (for adults). Depend­ing on the cir­cum­stances, a dis­tinc­tion is made between rep­res­ent­a­tion by a guard­i­an appoin­ted by the per­son to be rep­res­en­ted, a guard­i­an appoin­ted on the basis of the law (close rel­at­ives as reg­u­lated in sec­tions 260 ff of the Aus­tri­an Civil Code) or a guard­i­an appoin­ted by the court (gewählte, geset­z­liche oder gericht­liche Erwach­sen­en­ver­tre­tung). In each of these cases, the court is involved and, in many cases, required to approve the guardian’s powers of rep­res­ent­a­tion. The guard­i­an also has a num­ber of report­ing obligations.

Gen­er­al inform­a­tion | Bene­fits and advant­ages | Require­ments to be a donor or attor­ney | How to make a last­ing power of attor­ney | Con­tent | Form­al require­ments | Leg­al basis | Dur­a­tion | Scope | Costs | Aus­tri­an Cent­ral Register of Rep­res­ent­a­tion (ÖZVV) | Con­sequences of the fail­ure to make a last­ing power of attor­ney | Bind­ing liv­ing will | FAQ