2. Adult Protection Act

11. Juni 2018 / Mag. Markus PEIER

The 2nd Adult Protection Act enters into force on 1 July 2018. This law amends, in particular, the right of trusteeship in property. The Institute of Proxy has proved its worth and is being incorporated into the new law.

At the heart of the new regulation of this area of law is the development of the autonomy of vulnerable adults. In so far as these persons are still able to make decisions, they should be able to determine their own legal relations. In future, the law will be geared more closely to the needs, wishes and ascertainable will of vulnerable people.

To this end, representation models are being developed on the one hand and new regulations are being introduced on the other. The following four types of representation models will be available in the future:

Precautionary power

At a time when the authorising officer is competent to make a decision, he/she may, in the event that the precautionary situation arises, issue a power of attorney to one or more trustees. The power of attorney may be granted for individual matters or for certain types of matters. The power of attorney must be established in person and in writing before a notary, a lawyer or an adult protection association. We do not take effect the proxy for pension purposes until the pension event has taken place and the constitutive entry in the Austrian Central Representation Register (= ÖZVV) . The precautionary event occurs when the authorising officer loses the decision-making capacity necessary to deal with the entrusted matters.

Because of the precautionary power of attorney, it is possible to decide at an early stage who one wishes to be represented by in the event of loss of decision-making power. It also allows the proxy or proxy holders to be given in good time orders for representation.

Proxy authorisations established before 1 July 2018 shall continue to be valid, but the registration of the effectiveness of the proxy issued before 1 July 2018 shall be effective from 1 July 2018 in accordance with the new rules. will be.

The power of attorney may be combined with an adult representative order, which may also be issued separately. An adult representative can be appointed by means of an adult representative order. The adult representative order must be made in writing before a notary, attorney or employee of an adult protection association and entered in the Austrian Central Representation Register.

Elected Adult Representation

This type of representative election is introduced by the Second Adult Protection Act.

If a person who is unable to take care of his affairs for himself due to a mental illness or a similar impairment of his decision-making capacity fails to establish a precautionary power of attorney, he may, if necessary, elect an adult representative, provided that he is at least able to understand the meaning and consequences of such a power of attorney in broad terms, his or her will to determine accordingly and to act accordingly. It is therefore sufficient to have a reduced decision-making capacity for the election of an adult representative. A precautionary power of attorney could no longer be established at this stage. Only close persons may be elected as adult representatives.

Family status is not required except in the case of legal adult representation, so that, for example, friends or neighbours can also be elected as adult representatives. Assuming we have a certain relationship of trust.

The vulnerable person and his or her elected adult representative shall conclude an agreement in writing before a notary, a lawyer or an adult protection association specifying the powers of representation of the adult representative, which may relate to individual matters or certain types of matters. The agreement may also stipulate, on the one hand, that the adult representative may only take legally effective acts of representation with the person in need of protection, or, on the other hand, that legally valid statements made by the person represented must be approved by the adult representative.

The elected adult representation takes effect upon registration in the Austrian Central Representation Register. To this end, a medical certificate must be submitted stating that the adult person is so restricted in his or her decision-making capacity due to a mental illness or similar impairment that he or she is unable to take care of the matters covered by the representative’s sphere of action, but still understands the broad implications of the selection of the adult representative.

The elected adult representation is subject to regular control by the court.

Legal adult representation

The legal adult representation corresponds to the previous power of representation of next of kin (relatives representation), whereby the powers of the representative are expanded compared to the previous legal situation, however the representation is limited on the one hand to three years and on the other hand the representative is subject to regular judicial control.

Legal representation of adults is possible if a person of full age is unable to arrange for his affairs without risk of harm to himself or herself, because of a mental illness or a similar impairment of his or her ability to make decisions, has no representative and is unable or willing to elect such a representative. Legal representation of adults takes effect with registration in the ÖZVV. It must be registered by a notary, a lawyer or an adult protection association in the Austrian Central Representation Register, if the conditions for this are certified and in particular a corresponding medical certificate is presented.

The next of kin are the parents and grandparents, children of full age and grandchildren, siblings, nieces and nephews of the person represented, their spouse or registered partner and their life partner, if they have lived with them for at least three years, and the person designated by the person represented in an adult representative order, even if there is no relation to the person family relationship exists.

Existing relatives' representatives will remain in force after 1 July 2018, but will end at the latest on 30 July 2018. 6. 2021. If the prerequisites are met, a legal adult representation can then be registered.

Legal representation of adults

Legal representation for adults replaces the previous legal representative and should only be considered if no other form of representation is possible. It thus represents the ultima ratio.

Objection and revocation

If you wish to exclude certain persons (e. g. single children or a certain nephew) or groups of persons (e. g. all siblings) from the statutory adult representation, you can register an objection against them in the ÖZVV. The objection prevents representation by the corresponding person or group of persons.

Before registering the legal representation of adults in the ÖZVV, the notary, the lawyer or the adult protection association must check whether an objection has already been registered.

The power of attorney as well as the adult representative order and the elected adult representative may be revoked.

For the revocation or opposition of the person represented, it is sufficient if he indicates that he no longer wishes to be represented.

11. Juni 2018 / Mag. Markus PEIER

The 2nd Adult Protection Act enters into force on 1 July 2018. This law amends, in particular, the right of trusteeship in property. The Institute of Proxy has proved its worth and is being incorporated into the new law.

At the heart of the new regulation of this area of law is the development of the autonomy of vulnerable adults. In so far as these persons are still able to make decisions, they should be able to determine their own legal relations. In future, the law will be geared more closely to the needs, wishes and ascertainable will of vulnerable people.

To this end, representation models are being developed on the one hand and new regulations are being introduced on the other. The following four types of representation models will be available in the future:

Precautionary power

At a time when the authorising officer is competent to make a decision, he/she may, in the event that the precautionary situation arises, issue a power of attorney to one or more trustees. The power of attorney may be granted for individual matters or for certain types of matters. The power of attorney must be established in person and in writing before a notary, a lawyer or an adult protection association. We do not take effect the proxy for pension purposes until the pension event has taken place and the constitutive entry in the Austrian Central Representation Register (= ÖZVV) . The precautionary event occurs when the authorising officer loses the decision-making capacity necessary to deal with the entrusted matters.

Because of the precautionary power of attorney, it is possible to decide at an early stage who one wishes to be represented by in the event of loss of decision-making power. It also allows the proxy or proxy holders to be given in good time orders for representation.

Proxy authorisations established before 1 July 2018 shall continue to be valid, but the registration of the effectiveness of the proxy issued before 1 July 2018 shall be effective from 1 July 2018 in accordance with the new rules. will be.

The power of attorney may be combined with an adult representative order, which may also be issued separately. An adult representative can be appointed by means of an adult representative order. The adult representative order must be made in writing before a notary, attorney or employee of an adult protection association and entered in the Austrian Central Representation Register.

Elected Adult Representation

This type of representative election is introduced by the Second Adult Protection Act.

If a person who is unable to take care of his affairs for himself due to a mental illness or a similar impairment of his decision-making capacity fails to establish a precautionary power of attorney, he may, if necessary, elect an adult representative, provided that he is at least able to understand the meaning and consequences of such a power of attorney in broad terms, his or her will to determine accordingly and to act accordingly. It is therefore sufficient to have a reduced decision-making capacity for the election of an adult representative. A precautionary power of attorney could no longer be established at this stage. Only close persons may be elected as adult representatives.

Family status is not required except in the case of legal adult representation, so that, for example, friends or neighbours can also be elected as adult representatives. Assuming we have a certain relationship of trust.

The vulnerable person and his or her elected adult representative shall conclude an agreement in writing before a notary, a lawyer or an adult protection association specifying the powers of representation of the adult representative, which may relate to individual matters or certain types of matters. The agreement may also stipulate, on the one hand, that the adult representative may only take legally effective acts of representation with the person in need of protection, or, on the other hand, that legally valid statements made by the person represented must be approved by the adult representative.

The elected adult representation takes effect upon registration in the Austrian Central Representation Register. To this end, a medical certificate must be submitted stating that the adult person is so restricted in his or her decision-making capacity due to a mental illness or similar impairment that he or she is unable to take care of the matters covered by the representative’s sphere of action, but still understands the broad implications of the selection of the adult representative.

The elected adult representation is subject to regular control by the court.

Legal adult representation

The legal adult representation corresponds to the previous power of representation of next of kin (relatives representation), whereby the powers of the representative are expanded compared to the previous legal situation, however the representation is limited on the one hand to three years and on the other hand the representative is subject to regular judicial control.

Legal representation of adults is possible if a person of full age is unable to arrange for his affairs without risk of harm to himself or herself, because of a mental illness or a similar impairment of his or her ability to make decisions, has no representative and is unable or willing to elect such a representative. Legal representation of adults takes effect with registration in the ÖZVV. It must be registered by a notary, a lawyer or an adult protection association in the Austrian Central Representation Register, if the conditions for this are certified and in particular a corresponding medical certificate is presented.

The next of kin are the parents and grandparents, children of full age and grandchildren, siblings, nieces and nephews of the person represented, their spouse or registered partner and their life partner, if they have lived with them for at least three years, and the person designated by the person represented in an adult representative order, even if there is no relation to the person family relationship exists.

Existing relatives' representatives will remain in force after 1 July 2018, but will end at the latest on 30 July 2018. 6. 2021. If the prerequisites are met, a legal adult representation can then be registered.

Legal representation of adults

Legal representation for adults replaces the previous legal representative and should only be considered if no other form of representation is possible. It thus represents the ultima ratio.

Objection and revocation

If you wish to exclude certain persons (e. g. single children or a certain nephew) or groups of persons (e. g. all siblings) from the statutory adult representation, you can register an objection against them in the ÖZVV. The objection prevents representation by the corresponding person or group of persons.

Before registering the legal representation of adults in the ÖZVV, the notary, the lawyer or the adult protection association must check whether an objection has already been registered.

The power of attorney as well as the adult representative order and the elected adult representative may be revoked.

For the revocation or opposition of the person represented, it is sufficient if he indicates that he no longer wishes to be represented.