Adult protection procedure

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The adult protection procedure is regulated in Section 9 of the Extraordinary Disputes Act (AusStrG) ( Austria ) (Sections 116a to 131 ExtraStrG). The new regulation of this procedural law in 2017 took place in connection with the change in adult protection law through the 2nd Adult Protection Act and the associated introduction of adult representatives instead of guardians .

term

The term adult protection procedure should, such as As well as adults representative instead of guardian or person concerned instead of Pflegebefohlenem etc., within the meaning of UN - Convention on the Rights of Persons with Disabilities , which was also the occasion for issuing the second adult protection law, non-discriminatory as possible terminology used or . pretend.

structure

The adult protection procedure in the narrower sense is divided into six subsections in the 9th section of main part II AusstrG:

  • Section 9 (adult protection procedure)
  1. Procedural rights of the data subject (Section 116a)
  2. Appointment of a judicial adult representative (Sections 117 to 127)
  3. Change, transfer, renewal and termination of legal adult representation (Section 128)
  4. Ordering and lifting of a license reservation (§ 129)
  5. Obligation to report and rights to information (Section 130)
  6. Judicial control of legal acts in personal care (Section 131)

The provisions of Section 9 are supplemented by the

  • Section 10 (Property Rights of Persons Under Legal Representation, Sections 132 to 139) and
  • Section 11 (other provisions, §§ 140 to 142)

Subsections 1, 5 and 6 of section 9 and sections 10 and 11 are applicable to all forms of representation in the adult protection procedure:

Subsections 2 to 4 of Section 9 of the AussStrG are only to be used for adult legal representation.

Basic features of the adult protection procedure

Procedural rights of the data subject

Procedural acts

According to § 116a Abs. 1 AusStrG, the person concerned can undertake all procedural acts in adult protection proceedings regardless of their procedural ability. If there are differences between the applications of the person concerned and their representative, the content of all applications must be taken into account in the decision. So there is (theoretically) no preference for an action. If the person concerned wants to contest resolutions, it is sufficient according to § 116a Abs. 4 AusStrG that it is clear from a document that they do not agree with the decision.

Deliveries

The notification of resolutions must always be made to the person concerned. The legal advisor in the proceedings must explain the content to the data subject in a suitable manner (Section 116a (2) Foreign Trade Act). Only if the person concerned cannot even begin to understand the delivery process or the content of the decision, the service is effective if the copy of the decision comes into the physical vicinity of the person concerned, so that upon receipt they are without their mental illness or a comparable impairment of their ability to make decisions could provide knowledge of the content of the resolution (Section 116 (3) ForeignStrG). According to § 139 Abs. 1 AusStrG, § 116a Abs. 1, 3 and 4 also apply mutatis mutandis to minors from the age of 14.

The court (guardianship court) must provide the person concerned and their legal advisor (Section 119 in conjunction with 120a AusStrG) with expert opinions in good time.

Appointment of an adult judicial representative

Request or suggestion

The procedure for the appointment of a judicial adult representative is initiated by the adult data subject himself on application or ex officio, for example on the basis of a notification (Section 117 (1) Foreign Trade Act). In the case of minors, the procedure can be initiated at the earliest three months before reaching the age of majority (Section 117 (2) ForeignStrG).

Clearing process

According to § 117a AussStrG, if there are concrete and well-founded indications for the need to appoint a judicial adult representative, the responsible adult protection association (§ 1 ErwSchVG) must be commissioned with the clarification (§ 4a ErwSchVG) (clearing procedure). The person concerned is to be informed immediately of the referral to the adult protection association. The person concerned has the option to reject a person because of exclusion or bias (Section 116a AusStrG in conjunction with Section 19 ff JN in conjunction with Article 6 ECHR ).

Hearing the data subject

If the proceedings are then continued, the competent court (guardianship court) must obtain a personal impression of the person affected by the proceedings during the initial hearing, instruct them ( duty of maneuver ) and give this person the opportunity to comment. If the person concerned cannot come to court, the court must go to them. Forced demonstration is not permitted. A first hearing by way of mutual legal assistance is possible under certain circumstances (Section 118 AussStrG). A violation of the obligation to be heard constitutes a violation of the right to be heard (Article 6 ECHR).

Assistance in the ongoing proceedings

If the proceedings are continued after the first hearing, the person concerned must be provided with an adviser, who must, however, resign as soon as the person concerned has elected another suitable representative and notified the court (Section 119 Foreign Trade Act). Suitable relatives, the responsible adult protection association or a legal expert (e.g. lawyer , notary ) can be appointed as support.

Temporary adult representative

According to Section 120 (1) ForeignStrG, a temporary adult representative must be included if this is necessary to deal with urgent matters for the duration of the proceedings for the benefit of the person concerned. The temporary adult representative can also be appointed for the same area of ​​activity as a representative who has already been appointed, in accordance with Section 120 (3) ExternalStrG. Otherwise, the regulations on judicial adult representation apply to temporary adult representation. The temporary adult representation is entered in the Austrian Central Representation Directory and, according to Section 126 (1) ForeignStrG, the appointment of the judicial adult representative must be notified in an appropriate manner to those persons and offices who, in particular according to the information provided by the adult representative, have a justified interest in it. The representative affected by the termination must be notified of the termination of a health care proxy or a statutory or elected adult representative.

Expert opinion

According to Section 120a, the court only has to appoint an expert if it considers this necessary or if the person concerned requests it. As a rule, an expert report will only be superfluous if relevant reports and findings are already available.

Appointment of the definitive adult representative

A judicial adult representative is only appointed if no other form of adult representation is possible. In contrast to the previous legal situation, an oral hearing is only optional or if the person concerned requests it (Section 121 (1) Foreign Trade Act). As a rule, the negotiation takes place in camera (Section 140 (1) ForeignStrG) with the summons of the person concerned, assistance, the temporary adult representative and the person who is to be appointed as adult representative (Section 121 (2) ForeignStrG). Only if participating in the hearing endangers the well-being of the person concerned, the court can also negotiate without them (Section 121 (3) Foreign Trade Act).

The adult representative is appointed for a specific matter. A blanket order, as was previously the case for "all matters", is no longer permitted. Relatives of the person concerned have the right to be heard if no agreement can be reached on the person of the adult representative to be appointed and they can also appeal against the appointment (Section 127 (2) and (3) Foreign Trade Act).

The adult representation is only allowed for a certain period of time (maximum 3 years, § 246 Abs. 1 Zif. 6 ABGB) and must then be renewed or expires automatically (§ 128 AussStrG).

Change, transfer, renewal and termination of adult judicial representation

The procedure for changing, transferring, renewing and terminating legal adult representation is initiated at the request of the person concerned, the legal adult representative or ex officio and is largely the same as the appointment process (Section 128 ExternalStrG). The judicial representation of adults remains in effect for the original appointment period as long as renewal proceedings are ongoing. The court must inform the person concerned and the appointed judicial adult representative at least six months before the deadline expires about the imminent termination of the adult representation and indicate the possibility of a renewal. (§ 128 Abs. 4 AusStrG).

The appointed judicial adult representative has the position of a legal advisor (§ 119 AusStrG). In proceedings on the transfer of legal adult representation, the court may, if necessary, appoint a different representative from the previous legal adult representative for the proceedings.

The procedure is simplified when the adult judicial representation is expanded.

The court-appointed adult representative has to obtain the termination of the adult representation at the court when his tasks have been completed (Section 272 (2) ABGB).

attitude

The proceedings can be discontinued at any stage of the proceedings if the court comes to the conclusion that a judicial adult representative is not required (Section 122 (1) of the Foreign Trade Act), e.g. B. because another form of representation (e.g. health care proxy) can suffice. If necessary, the court can also order the termination of a power of attorney or a legal or elected adult representative (Section 122 (3) Foreign Trade Act).

costs

When appointing, changing, transferring, renewing and terminating legal adult representation, the costs incurred by the state are to be borne by the person concerned, provided that this does not endanger their necessary maintenance or that of their family, for whom they are responsible (Section 124 AussStrG ). In the event of a restriction or termination of the judicial representation of adults, the state always has to finally bear the costs (Section 128 (1) Foreign Trade Act).

Obligations to communicate and ÖZVV

In the Austrian Central Representation Directory (ÖZVV), the existence of the adult representation and the change, transfer, renewal and termination or termination (if previously reported) must be entered.

According to Section 126 (1) ForeignStrG, the appointment of the judicial adult representative must be appropriately notified to those persons and offices who, according to the results of the proceedings on file, in particular according to the information provided by the adult representative, (could) have a justified interest in it. The representative affected by the termination must be notified of the termination of a health care proxy or a statutory or elected adult representative.

The arrangement of a reservation of approval must be entered in the public books and registers if the reservation of approval includes the rights entered in the relevant book or register (Section 126 (2) Foreign Trade Act).

Position of relatives

From the initiation of the procedure for the appointment of a judicial adult representative, the spouse, registered partner or domestic partner, the parents and children of legal age of the person concerned as well as the person named in an adult representative order (Section 127 (1), Section 244 (1) ABGB) ), unless the person concerned has ordered otherwise or indicates that they do not want such a notification.

If the delivery address or similar of a relative cannot be determined with minimal effort or if he is not only temporarily unable to make a statement, then this relative is to be treated as a party not on record and not to be notified (Section 127 (4)) .

Subject to approval

In principle, the capacity of an affected (represented) person to act is not restricted by an adult representative or a health care proxy (Section 242 (1) ABGB ). But the court may order the action or substantial or to avert serious risk in an area where a judicial adults representative process capability limit of the data subject temporarily and bind to the prior approval of the adult representative (§ 129 AußStrG, § 242 para. 2 Civil Code).

According to Section 123 (2) ForeignStrG, in the decision on the appointment of a judicial adult representative or with a separate decision, the court can also order a reservation of approval (Section 242 (2) ABGB) and the termination of a health care proxy or a statutory or elected adult representative.

Reporting obligation and rights to information

The court does not act directly in the context of adult representation, but relies consistently on reports from the adult representative (e.g. life situation report in accordance with Section 259 (1) of the Austrian Civil Code, reports in the context of asset management in accordance with Section 133 of the General Data Protection Act). These reports are not publicly available and are not disclosed to relatives.

As part of the supervision, the court has to give its approval to certain acts (e.g. medical treatment according to § 131 Abs. 1 AussStrG, changes of place of residence according to § 131 Abs. 2 AussStrG etc.). Information, hearing or consent from relatives is not provided.

Judicial control of legal acts in personal care

Property rights of persons under legal representation

In the 10th section of the second main part of the Foreign Trade Act (§§ 132 to 139) the procedural rights in connection with the property rights of persons under legal representation are regulated.

As a matter of principle, the court has to approve and supervise legal acts in asset management by the legal representative. There are, however, a number of exceptions, especially if the legal representative is a close relative or an adult protection association (Section 133 (2) Foreign Trade Act). The court can also approve certain future legal acts of the legal representative in advance (Section 132 Foreign Trade Act).

The aim of the court's surveillance is in any case to prevent any endangerment of the well-being of the person represented (Section 133 AussStrG).

According to § 133 Abs. 4 AusStrG , the court has to research the property and to monitor its administration, including to secure it, in particular to give orders to the legal representative, to obtain information from credit companies or from persons obliged to provide information according to § 102 AusStrG, an estimate that Order the blocking of credit balances as well as the judicial safekeeping of documents and documents and take temporary precautions . The supervision also includes the guardianship account by the legal representative in relation to asset management, which must be submitted every three years at the latest (Section 134 External Tax Act). However, parents, grandparents and foster parents as well as a child and youth welfare agency are only obliged to submit accounts to the court within the framework of custody if the court orders this for special reasons (Section 135 Foreign Tax Act). Excepted from this, however, is the compulsory collection and storage of documents relating to the management of significant assets and notifying the court of the acquisition of immovable property or a value exceeding 15,000 euros (Section 135 (3) Foreign Trade Act).

Protection of private and family life and data protection

In the 11th section of the second main part of the AusstrG (§§ 140 and 141) there are regulations for the protection of the person represented with regard to the protection of private and family life as well as data protection.

A decisive provision is that oral hearings before the guardianship court are not public (Section 130 (1) Foreign Trade Act). This means that relatives will continue to be excluded from these negotiations as before. Only if no party speaks out against it, the court can create the public, provided that no circumstances of private and family life are discussed and this is compatible with the interests of the person represented . According to Section 19 (5) of the Foreign Trade Act, the person concerned can demand that, in addition to themselves and their representative, a person they trust is permitted to be present at the oral hearing; Otherwise, Sections 171 (2) and (3), 173, 174 (2) and 175 (2) ZPO apply . Representatives of the child and youth welfare agency, the family court assistance and the youth court assistance can always - if invited - take part in closed negotiations.

All persons are fundamentally obliged to maintain secrecy (Section 140, Paragraphs 2 and 3 of the Foreign Trade Act).

According to § 141 Abs. 1 AusStrG, information on the income and financial situation of the person represented as well as information on their state of health may only be given by the court to this person and their legal representative . After the death of the person represented, heirs and persons who have declared inheritance (Section 157 AusStrG) may be given information about the income and financial situation of the deceased person and - insofar as this serves to enforce their last will - information about their state of health .

As part of administrative assistance , the court is permitted, with restrictions, to provide information on the income and financial situation of the person represented and information on their state of health (Section 141 (2) Foreign Trade Act).

Web links

Individual evidence

  1. ↑ Federal Law Gazette I No. 59/2017 .
  2. ^ In Austria in BGBL. III implemented in 2008/155.
  3. ↑ Georldinger in Richterzeitung (RZ) 2018, p. 73.
  4. ↑ For the term “next of kin” see: Section 268 (2) ABGB and Section 133 (2) Foreign Trade Law.