2010: Legal capacity and proxy decision making
Issues surrounding the loss of legal capacity
The 136th Federal Law of 2 February 1983 on Trusteeship/Guardianship for Handicapped Persons (Law on Trusteeship/Guardianship Law) resulted in the repeal of several paragraphs relating to incapacitation in the Order on Incapacitation of 28 June 1916. Due to the change in Guardianship Law effective as from 1 July 2007 (Sachwalterrechts-Änderungsgesetz BGBl 2006/92) guardianships are to be restricted to those cases in which the appointment of a guardian is unavoidable by legislation offering alternatives to guardianship, i.e. agents authority granted to next of kin or durable powers of attorney for legal representation.
This law refers to §268 of the General Civil Code which states that a person who is unable to manage his/her own affairs without risk of personal disadvantage can have a trustee appointed if there is no less restrictive method of protecting his/her interests.
Proxy decision making
The conditions for the appointment of a guardian
People with dementia who need a guardian are now covered by the Law on Trusteeship. According to §268 of the General Civil Code,
"If a person who suffers from a mental illness or who is mentally handicapped is unable to look after some or all of his own affairs without risk of disadvantage to himself, a trustee shall be appointed for this purpose on his own application or by order of the authorities."
A trustee (the term which will be used hereafter for guardian) should not be appointed if the person concerned could be assisted in a way which would be less intrusive or extreme, e.g. by a family member or a private or public institution. One such possibility would be to use a durable power of attorney, provided that the person had sufficiently legal capacity to write a valid durable power of attorney . Nevertheless, the repeal of the Order on Incapacitation in 1984, which meant that people could no longer be declared "legally incompetent", resulted in a huge increase in the number of trustees appointed (Blaha, 1999 ). Awareness of this problem has been increasing, and new research by appointment of the Ministry of Justice has been carried out.
How guardianship is arranged
The procedure for the appointment of a trustee is described in §§117-131 Außerstreitgesetz.
- First, there must be a request for trusteeship. This can be made by the person him/herself or alternatively by anyone who is of the opinion that the person is in need of protection.
- Then, if the Court judges that there are reasonable grounds for concluding that such an appointment is necessary, it must contact the person concerned. This person must be informed of the reason and purpose of the procedure and s/he must have the opportunity to express his/her views on the matter. If the person ignores the summons to appear in Court, measures can be taken to bring him/her there although due consideration must be shown. If the person cannot appear in Court as it would be impractical or detrimental to his/her wellbeing, the judge must make a home visit.
- If the Court decides to go ahead with the proceedings, a legal advisor is arranged for the person. A temporary trustee is appointed for the duration of the proceedings if the person has no legal representative of his/her own choice. The temporary trustee can be replaced at any time if the person appoints a legal representative of his/her own choice.
- The Court then makes the necessary inquiries for a decision to be made on the basis of an oral hearing. The person can be excused from being present at the oral hearing if his/her presence would be impractical or detrimental to his/her well-being. At the oral hearing, people who are close to the person are called in and the circumstances surrounding the request and the person are taken into account. A trustee can only be appointed after at least one, or if appropriate several, experts have been heard and have submitted a report.
- If the Court decides not to appoint a trustee, the proceedings must be terminated. If, on the other hand, a decision is made to appoint a trustee, the decision must be accompanied by a statement that a trustee is being appointed for the person in question in accordance with §268 of the General Civil Code. The trustee must be named and the affairs that s/he has to manage must be described on a case by case basis. If appropriate, the extent to which the person concerned is free to make decisions must be stipulated. A statement of costs must also be made. The decision concerning the appointment of a trustee is served in person on the person concerned, the representative and the trustee.
Who can be a guardian
The choice of trustee is based on the nature of the affairs which need managing and the needs of the person for whom the trustee is being appointed. Usually a person is appointed who is on close terms with the ward. Alternatively, a trustee can be appointed from a circle of people designated by a non-profit advocacy organisation. If it is felt that the person's affairs would be best handled by a person with legal knowledge, a lawyer, trainee lawyer or notary can be appointed.
Other appropriate persons (e.g. social workers) may be appointed if neither persons close to the ward nor an advocacy organisation nor an attorney or notary is available. These persons are not allowed to assume more than five guardianships. Attorneys-at-law or notaries may not take on more than 25 guardianships. The Court decides on a case by case basis if those persons are able to act in more than 5 or 25 guardianships.
According to the new law (§ 279 of the General Civil Code), the trustee in question must be able to act independently on behalf of the ward. This means, for example, that no employee of a nursing home where the person concerned lives, or care providers who are directly involved in the patient’s treatment, may function as a trustee.
The Federal Law of Organized Guardians, Patients’ Advocates and Residential Advocacy (BGBl I 2006/92) contains specific rules on the appointment of trustees (and patients' advocates, and residential advocacy) from organisations.
The duties and responsibilities of guardians
As a “legal representative” the powers of the trustee are determined on an individual basis taking into account the extent of the disability, as well as the nature and scale of the affairs to be managed (§268 of the Law on Guardianship). The trustee can be entrusted with the management of the person's individual affairs such as defence against a claim or entering into and handling a legal transaction, or with the management of all the affairs of this person. However, for "strictly personal decisions" such as the right to bodily integrity and the choice of one's place of abode, the trustee can only decide on the person's behalf if the latter is incapable of understanding or making a judgement . If the trustee is not only entrusted with single affairs, s/he must be in touch with him/her at least once a month (this is called “Personensorge” nach §282)
The trustee may be entrusted with the management of a particular range of affairs, the administration of some or all assets or the management of all the affairs of the person. The Court may, however, grant the person under trusteeship the right to make decisions and undertakings which fall under the authority of the trustee, provided that this would not endanger his/her wellbeing. According to §282 of the Law on Trusteeship,
"the trustee of a handicapped person must also ensure that required personal care and in particular medical and social care is offered. …and must establish at least monthly contact, if s/he is not only entrusted with single affairs.”
The person under guardianship only loses capacity for matters which have become the responsibility of the trustee. S/he retains legal capacity for all other matters, except legal representation of his/her children. This person also requires the guardian’s consent to marry.
Moreover, even if responsibility for a decision lies with the trustee, s/he must inform the person of any important decisions relating to his/her person or assets. The trustee must give the person sufficient time and opportunity to express his/her views and must take such views into consideration provided that any wish expressed is appropriate. The new law contains actual guidelines or stipulations on how assets should be managed: The guardian is first and foremost responsible for the person’s wellbeing. Primarily, assets should be used to improve the person’s living conditions (§ 281 (3) of the General Civil Code).
Measures to protect the ward from misuse of power
It is the duty of the Court to verify at appropriate intervals whether the wellbeing of the person for whom care has been ordered requires the removal of the trustee(s) or a change in the trusteeship (§278 of the General Civil Code). In addition, the trustee must regularly report to the Court and if applicable, account for the management of the person's income and assets. At least once a year, the trustee must submit a report on the contact s/he has had with the person and that person’s housing situation and living conditions. For financial matters, a financial report must be submitted at least once every three years.
With regard to associations acting as trustees, it is the responsibility of the Federal Minister of Justice to supervise their work. In §5 of the Law of Organized Guardians, Patients Advocates and Residential Advocacy it is stated, that the Federal Minister of Justice must, ensure, in an appropriate manner, if necessary by direct examination, that the associations are carrying out their duties in the context of association trusteeship properly and in accordance with the law.
Compensation and liability of guardians
According to §276 of the General Civil Code, guardians can apply to the court for remuneration and to have their expenses reimbursed. Usually, they receive 5% of the ward’s net income excluding certain benefits and allowances that the latter may receive. An additional 2% of the ward’s assets exceeding EUR 10,000 may also be granted.
If the trustee does not act on behalf of the ward, s/he is liable for all resulting damage (§267 of the General Civil Code). Lawyers, public notaries or trustees from a non-governmental organisation must fulfil higher standards than trustees close to the ward.
Duration of the guardianship measure
The trustee can be relieved of his/her duties if at any time they are no longer needed. In addition, it is the duty of the Court to verify "at appropriate intervals" whether the wellbeing of the person for whom care has been arranged requires the removal or change of trustee (§283 of the General Civil Code).
The right to appeal
The ward has full legal capacity concerning the proceedings of guardianship. S/he can appeal to a Higher Court, file an application, apply or appear directly in Court.
Agent’s authority granted to next of kin (AAGNK)
The conditions for the appointment of an AAGNK
As stated in the previous section, it is now possible to grant agent’s authority to a next of kin (Vertretungsbefugnis nächster Angehöriger) if guardianship is not necessary but due to mental illness or disability, the person is unable to manage his/her legal affairs or personal matters. However, it is only possible to grant such authority to a next of kin if the person does not already have a trustee and has not already granted a durable power of attorney for legal representation (Vorsorgevollmacht).
How AAGNK is arranged
To obtain an agent’s authority, a person must submit a medical certificate in which it is stated that the person concerned lacks legal capacity, submit it to a public notary along with proof that s/he is the next of kin. This is then entered into the Central Austrian Register of Representation (ÖZVV). The notary gives the newly appointed agent a certificate for identification purposes.
Who can be an agent
Next of kin includes parents, children who are of age and spouses (or unmarried partners who have lived together for at least 3 years). These people are not placed in any order of priority.
The duties and responsibilities of agents
Once appointed, they are responsible for handling the person’s current income (there is a limit of € 901 per month, and there are different interpretations of this limit.) and covering his/her needs for care. This might, for example, include making claims for pensions and social assistance and consenting to treatment provided that it would not have a lasting or serious impact on the person’s health and that the person lacks the insight and judgement to make the decision him/herself.
Measures to protect the ward from misuse of power
If the person concerned is considered to be in danger, this must be reported to the Court, which would then appoint a trustee who is entitled to take legal action.
Compensation and liability of agents
The agents are not entitled to remuneration but are liable for damages according to the rules laid down for guardians.
Duration of the AAGNK
There is no regulation specifically covering the duration of the AAGNK (i.e. its duration is not regulated by law). The AAGNK could be terminated at the objection of the person concerned, by appointment of a trustee or on recovery of the person concerned (e.g. the person concerned recovers after a stroke).
The right to appeal
An agent cannot be registered if the person concerned objects to his/her appointment or already has a guardian or durable power of attorney for legal representation. The person can even object after s/he has lost legal capacity, insight or judgement with the result that the agent’s authority would be terminated or not become effective.
Durable powers of attorney
The conditions for the appointment of a durable power of attorney for legal representation
The changes in the guardianship law, which came into force on 1 July 2007, also cover durable powers of attorney for legal representation (referred to hereafter as DPoA). The DPoA only becomes effective when the person granting it loses legal capacity, insight and judgement or the ability to express him/herself (as attested by a medical certificate)
How durable powers of attorney are arranged
There are two ways to make a DPoA:
- It must be signed manu propria (with one’s own hand) by the grantor who then confirms in front of three unbiased witnesses with full legal capacity that it fully conforms to his/her intentions.
- It is not signed manu propria by the grantor but is confirmed by a public notary.
If, however, it contains wishes relating to certain issues (namely consent to serious medical treatment with lasting effect, decisions relating to permanent relocation and/or financial matters which are not part of day-to-day business), it must be drawn up before a lawyer, public notary or court. If it was not drawn up before a lawyer, public notary or court, the court would have to appoint a guardian for decisions about such issues.
The grantor must be informed of the legal consequences of making such a document and of the option to revoke it at any time.
This is then entered into the Central Austrian Register of Representation (ÖZVV) by a lawyer or notary who must inform both the granter and the holder of the DPoA of the registration of the document and make sure that each has a copy. Only a notary can register the entry into effect of the DPoA. When this is done, s/he must also provide the holder of the DPoA with a DPoA registration certificate.
Durable power of attorney for health care purposes
As mentioned above, a DPoA concerning consent to serious medical treatment with a long lasting effect or refusing treatment, which is vital, must be drawn up before a lawyer, a public notary or a court.
It is also possible to combine a DPoA with a living will:
A living will concerns the advance refusal of medical treatment at a time when the grantor no longer has insight or judgement or cannot express him/herself. It can be considered relevant or binding. For it to be binding, it must contain specific details of the treatment to be refused and must have been drawn up before a lawyer, notary or patient advocacy organisation. In addition, it must be renewed after five years.
Who can be appointed attorney
According to § 284f – 284h of the General Civil Code, anyone can grant a DPoA to a person they trust.
The duties and responsibilities of the attorney
The wishes and obligations the grantor has stated in the DPoA must be fulfilled. If the grantor has not stated something specific, the general welfare of the person represented has to be promoted.
Measure to protect the person from misuse of power
The grantor can revoke the DPoA at any time. If the grantor is incapable to act for him/herself, anybody can inform the court. The court may appoint a guardian, who could, with special permission from the court, revoke the DPoA on behalf of the grantor.
Compensation and liability of the attorney
Compensation and/or reimbursement of expenses should be handled as stipulated in the DPoA.
There is liability of damage according to the rules laid down for trustees.
Duration and right to appeal
The person who made the DPoA can revoke it at any time even, even after s/he has lost capacity, insight or judgement.
Capacity in specific domains
Marriage and divorce
Article II of the Law on Trusteeship which amends the marriage law, states that people with restricted legal competence shall be considered as minors over seven years old and persons for whom a trustee has been appointed under §268 of the General Civil Code. Under the Marriage Law, consent of the trustee (if one has been appointed) is necessary or if such consent is refused, the court of trusteeship can give it instead.
The person with restricted legal competence, however, must be able to understand what duties and responsibilities marriage implies (i.e. have the “capacity to marry”). If not, the marriage could be declared null and void.
If a person with dementia wants to divorce and his/her legal competence has not been restricted, s/he can file for divorce. If a trustee has been appointed, and the person concerned wanted to divorce before s/he became ill, the former is entrusted to file for divorce on behalf of the latter.
If his/her partner files for divorce, and the break-up is not in the ward’s interest, the marriage can be dissolved by the court 6 years after the end of marital cohabitation. According to §51 of the Marriage Law, severe mental illness can be a reason for divorce if recovery is not expected.
Consensual divorce, in accordance with §55a of the Marriage Law, is based on a strictly personal decision. Surrogate decision making is therefore not permitted.
A person for whom a trustee has been appointed does not lose the right to vote (or to be elected) .
Where there is a trustee, wills can be made in a particular way. The person who is making the will must make a statement of will before the court or before the notary, if the court has declared it to be a part of the decision related to the appointment of a trustee.
Once a person has had a trustee appointed in accordance with §268 of the General Civil Code, s/he can no longer make legal decisions or transactions for any actions for which the trustee has been entrusted without the express or tacit consent of the trustee. There are exceptions to this rule, which are determined by the Court. If the person does make a legal transaction which is not one of these exceptions but is of minor significance concerning daily life, it can still be considered legal provided that the person has fulfilled his/her duties in relation to it.
According to § 11 of the Penal Code:
“A person who at the time of the action, on account of mental illness, of mental deficiency, of far-reaching disturbance of consciousness or of some other mental disturbance equivalent to one of these conditions, is incapable of understanding the wrongfulness of his action or of acting in accordance with this understanding, shall not be acting culpably.”
Alzheimer Austria, speech by Frau Mag. Dorothea Gschöpf-Dvorak vom Verein für Sachwalterschaft (29.1.99) – Sachwalterschaft und Vorsorgevollmacht.
Alzheimer Austria, speech by Margarethe Blaha (11.5.99) on guardianship and other legal issues (in German and in English)
NÖ Landesverein für Sachwalterschaft und Bewohnervertretung (2007), Adult guardianship
NÖ Landesverein für Sachwalterschaft und Bewohnervertretung (2007), Agent’s authority granted to next of kin
NÖ Landesverein für Sachwalterschaft und Bewohnervertretung (2007), Durable power of attorney for legal representation
Last Updated: Tuesday 27 March 2012