AUSTRIA Law and Practice Contributed by: Clemens Philipp Schindler and Katharina Schindler, Schindler Attorneys
the maintenance of intellectually disabled adults is a common legal instrument. 8.2 Appointment of a Guardian According to Austrian law, there are several options for the appointment of guardians. In general, the appointment of a guardian is required if a person is not capable of managing their own affairs without the risk of causing harm to themselves. In order to secure one’s personal and financial affairs in case of future loss of mental capability, a lasting power of attorney ( Vorsorgevollmacht ) may be estab - lished. Such lasting power of attorney has to be established before an attorney at law, a notary public or an adult protection association, and needs to be registered in the Austrian Central Register of Repre - sentatives (ÖZVV). If an individual is no longer capable of establishing a valid lasting power of attorney, a guardian may be chosen by the respective individual if they are able to understand the consequences of such a represen - tation. Only an adult who has a relationship of trust with the individual concerned may be chosen as a guardian. The appointment of the chosen guardian becomes effective upon the conclusion of an agree - ment drawn up before an attorney at law, a notary public or an adult protection association, and upon the registration of the guardian in the respective ÖZVV. If an individual does not have decision-making capac - ity or does not want to appoint or choose a guardian, close relatives become representatives of the respec - tive person ex lege. Close relatives are spouses, par - ents, grandparents or adult children. The legal adult representation becomes effective upon entry in the ÖZVV. The registration has to be effected by an attor - ney at law, a notary public or an adult protection asso - ciation. None of the three types of adult representations are appointed by the family court. If none of the types of guardians can be appointed, the competent family court may appoint in ultima ratio a guardian to safeguard the interest of the disabled adult. A guardian appointed by the family court may
only be appointed for specific affairs. A guardian is also appointed by the court if a chosen guardian or a close relative acting as a guardian (ex lege) does not comply with the required care and duty. All types of guardians are subject to court supervi - sion. The adult guardian is generally entitled to the reimbursement of expenses. 8.3 Elder Law Since 2010, the Austrian government has been pursu - ing a co-ordinated and comprehensive pension strat - egy to bring about long-term health promotion. Elder law in Austria is a cross-cutting issue between family, inheritance, labour and social security law. Austrian law offers various possibilities of adult repre - sentation in order to provide for potential health dete - rioration. There is also the possibility of establishing a living will ( Patientenverfügung ) to stipulate future medical treatment. On the other hand, Austrian social security law offers various forms of support, such as care allowance, depending on the health condition of the person con - cerned. 9. Planning for Non-Traditional Families 9.1 Children In Austrian law, children born out of wedlock, adopted children and children born during marriage have equal rights. In general, surrogacy is prohibited in Austria, although the Austrian Constitutional Court has decided that surrogacy does not violate fundamental Austrian val - ues. Since 2019, several Austrian authorities have acknowledged foreign authorities’ decisions on par - enthood regarding surrogate children. Posthumously Conceived Children and Inheritance Law If the testator does not mention an unborn child in their will, the legal consequences for the respective child depend on the knowledge of the testator regard - ing the unborn child, as follows:
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