AUSTRIA Law and Practice Contributed by: Clemens Philipp Schindler, Schindler Attorneys
Code) in order to avoid the risk of loss. Extraordinary investment decisions as well as management deci - sions regarding the property of minors have to be approved by the competent family court. Furthermore, preliminary and posterior heirship may be stipulated in a last will. The appointed pre-heir receives the estate but typically only has the right to usufruct regarding the assets of the estate. Such structure may be used in order to protect the estate until a minor heir is of age. The same legal measures may be used if an intellectu - ally disabled adult is involved. The establishment of a private foundation with the purpose of safeguarding 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 Austria, whether a power of attorney is subject to court oversight depends on the specific form of representation. A power of attorney ( Vorsorgevoll- macht ) and an elected adult representative ( gewählter Erwachsenenvertreter ) are generally established without a court appointment procedure, although the respective requirements and registration in the Austrian Central Register of Representatives (ÖZVV) must be observed. Statutory adult representation ( gesetzlicher Erwachsenenvertreter ) is also generally established without a court appointment, but is like - wise registered in the ÖZVV. Judicial adult representa - tion ( gerichtlicher Erwachsenenvertreter ), on the other hand, requires court proceedings and a court order of appointment. The family court must specifically define the scope of authority and may only order representa - tion for those matters in which it is actually necessary. Ongoing judicial supervision applies in particular to court-appointed adult guardianship: the court moni - tors the activities of the adult guardian and may request reports and financial statements. In addition, certain financial transactions require court approval. In
the case of powers of attorney for healthcare, as well as elected and statutory adult guardianships, there is generally no ongoing judicial supervision in the same manner as with court-appointed adult guardianship. However, these forms of representation are subject to legal limits and may be reviewed by the competent family court in the event of issues. In practice, a dis - tinction is therefore made between: • representation established by private agreement or by law, without ongoing court supervision; and • court-appointed adult representation subject to ongoing court oversight. 8.3 Planning for Incapacity 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 ÖZVV. It is often established to handle financial matters, banking transactions, dealings with government agencies, and medical matters. 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 representa - tion ( gewählter Erwachsenenvertreter ). Only an adult who has a relationship of trust with the individual con - cerned may be chosen as a guardian. The appoint - ment of the chosen guardian becomes effective upon the conclusion of an agreement 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 ( gesetzlicher Erwachsenenver- treter ); close relatives are spouses, parents, grandpar - ents or adult children. The legal adult representation becomes effective upon entry in the ÖZVV. The reg - istration has to be effected by an attorney at law, a notary public or an adult protection association.
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