Adult representative

from Wikipedia, the free encyclopedia

An adult representative is the representative of adults ( persons of legal age ). This representation is regulated in Austria by the Adult Protection Act, which arose from the reform of the guardian law and largely came into force on July 1, 2018.

By naming the institution as adult representation instead of guardianship, a departure from previous practice is to be documented in Austria and the subsidiarity of external representation is to be strengthened while maintaining the autonomy of the person represented as far as possible. According to the Adult Protection Act, there are basically four pillars of the representation of adults in need of support: the previously proven health care proxy, the newly introduced elected adult representation, the statutory adult representation (previously authorized to represent closest relatives) and the judicial adult representation (previously guardianship).

Legal basis

The legal basis for adult representation is regulated primarily in the Adult Protection Act, through which the General Civil Code (ABGB), the Non-Dispute Act (AusStrG) and various other laws (e.g. ZPO , JN , EheG etc.) have been changed.

The reason for the comprehensive change to the Austrian trustee law is, among other things, the provisions of the UN Convention on the Rights of Persons with Disabilities , in which more space is given to self-determination and representation is to be pushed back. The provisions of the Administrator Rights Amendment Act 2006 and judicial practice did not take this into account.

Representation matters

The adult representation can handle matters of

  • Personal care,
  • Property matters and
  • legal matters

include (§§ 250 ff ABGB new version).

Personal care

General

Personal care includes matters that are based on the personality of the person represented or their family circumstances. The adult representative is only allowed to intervene in these matters to a very limited extent, even if it includes his sphere of activity (Section 250 (1) ABGB). An adult representative is not obliged to look after the person represented. However, if the adult representative finds that the person represented is not being fully cared for, he or she only has to endeavor, regardless of his area of ​​activity, to ensure that he or she is provided with the necessary medical and social care (Section 251 ABGB new version).

Medical affairs

If a person can consent to medical treatment himself (decision-making ability given), only this person is authorized to make a decision, even if an adult representative has been appointed for personal care (Section 252 ABGB new version). If the doctor has doubts about the decision-making ability of an affected person, the doctor should call in relatives, persons close to the patient, confidants or special specialists in order to enable the patient to regain the ability to make decisions. This order is intended to implement Article 12, Paragraph 3 of the UN Disability Rights Convention. If the patient refuses to involve such persons after being informed about the planned involvement of close people, etc., this decision must be respected by the doctor.

In the case of persons incapable of making a decision, the medical treatment requires the consent of the health care proxy or the adult representative in whose sphere of activity this matter falls. The representative can decide - with a few exceptions, regardless of the intensity of the intervention.

The representative has to be guided by the will of the person represented. In case of doubt, it can be assumed that she desires medically indicated treatment . (Section 253 (1) ABGB new version), unless the person represented further indicates the rejection of medical treatment. Then the court has to decide. However, if there is a valid, binding living will and the person represented has rejected the planned medical treatment and there are no indications of the ineffectiveness of the living will, the treatment must be discontinued without consulting a representative.

In the event of imminent danger, which can result in the death of the patient or serious damage to health, no prior consent of the person concerned or the representative needs to be obtained. If treatment is no longer medically necessary because it only causes unnecessary suffering or if there is an unfavorable prognosis or a corresponding arrangement in a living will , this treatment can also be discontinued without the consent of the person concerned or his representative.

Asset care

Asset management includes

  • Management of assets or
  • of income

the person represented by the adult representative. The adult representative commissioned with income and asset management must first get an overview of the income, assets and financial claims of the person represented. This also means that - depending on the defined scope of his tasks - he informs banks, pension offices, authorities and insurance companies etc. personally or in writing about the new situation.

In any case, the represented person must continue to satisfy his reasonable needs from the assets / income, in accordance with his personal living conditions (Section 258 (1) ABGB new version). The adult representative must therefore provide the person represented with the necessary financial resources for legal transactions in daily life and to cover reasonable living needs, so that the person represented can continue to participate in economic life as much as possible. This can e.g. B. by regularly handing over cash, access to a current account (e.g. your own account card with payment and withdrawal limit) or individually agreed. It is always important for the adult representative to note that the person they represent is not automatically restricted in their legal capacity just because an adult representative or an authorized representative has been appointed. As long as the person represented is capable of making a decision, they can therefore continue to conclude legal transactions. The consent of the representative is only required for the transaction to be effective if she is no longer able to make a decision.

In any case, judicial control does not only exist with regard to the use and handling of the property / income of the person represented, but also over the structure and frequency of his personal contacts with the person represented, their place of residence, their mental and physical well-being and is about the to report matters that were concerned in the past year and matters to be concerned in the coming year (Section 259 (1) ABGB new version). If financial matters are not part of the normal business operations, the court must approve changes (Section 258 (4) ABGB new version).

If there are concerns or if the well-being of a person represented is at risk, the court has to issue the necessary dispositions to safeguard the well-being at any time (Section 259 (4) ABGB new version).

Legal representation

The legal representation depends on whether this was previously agreed in a health care proxy, an adult representative order, another authorization or ordered by the court as part of the legal adult representation.

In the context of legal adult representation, a legally qualified notary (notary, notary candidate, lawyer or trainee lawyer) is to be appointed especially if the handling of the matters primarily requires legal knowledge, an adult protection association (§ 1 ErwSchVG) especially if there are otherwise special requirements with the adult representation are connected (§ 274 ABGB 5 nF).

Types of adult representatives

According to the Adult Protection Act, a distinction is made according to their personal or professional position:

  • Representation by health care proxy (contractual adult representation);
  • elected adult representative, by agreement between the represented person and the representative;
  • legal adult representative, (family members, §§ 268 ff ABGB new version);
  • legal adult representative.

Transitional provisions power of attorney

As long as the power of representation of an authorized representative or adult representative is entered in the Austrian Central Representation Directory (ÖZVV), this continues to exist, even if the person represented is able to act within the sphere of activity of the representation or regains his or her ability to act (Section 245 (4) ABGB new version). If a power of attorney was drawn up by June 30, 2018 without the insured event occurring, this must be registered in the ÖZVV after July 1, 2018 due to the legal situation. If the insured event already occurred on July 1, 2018, and the proxy is already active based on an "old" health care proxy, this health care proxy will continue to exist beyond July 1, 2018, even if this or the insured event is not registered in the ÖZVV. However, there is no protection of good faith until registration .

Power of attorney

With a health care proxy (§ 260 ABGB new version), representation can continue to take place independently of or even before a procedure for adult representation. This means that the highest level of self-determination is fundamentally implemented, no elected, legal or judicial adult representation is necessary, and state influence is reduced to a minimum. It is an unlimited power of attorney similar to an elected adult representative. Therefore, the principal can also order the conversion of an existing “normal” power of attorney into a power of attorney when the insured event occurs (Section 260 ABGB new version). In the power of attorney, a non-binding order can be made for the court and the named adult representative with regard to the person of the adult representative, if one is to be appointed later (see also adult representative order, § 274 in conjunction with § 244 ABGB). Also with regard to which person should not be appointed as an adult representative.

Insofar as a health care proxy exists or the support of other persons (e.g. family) with whom the matters of the person represented are taken care of to the required extent, no adult representative may act (Section 240 (2) ABGB new version). The judicial control or influence is reduced to a minimum and essentially only concerns the approval of medical treatments in the event of dissent between the representative and the person represented and permanent change of residence abroad.

The insured event occurs when the principal loses the decision-making ability required to deal with the matters entrusted to it. Age limits do not play a role for the occurrence of the insured event. Restrictions on the ability to express themselves should not in themselves cause the contingency to occur.

With the Adult Protection Act, it is mandatory that the health care proxy is drawn up personally and in writing before a notary, lawyer or adult protection association after the instruction (Section 262 (1) ABGB new version). The entry in the Austrian Central Representation Directory (ÖZVV) is mandatory (Section 245 (1) ABGB) so that the power of attorney can become effective (Section 263 ABGB new version - only required as an option until July 1, 2018). Adult protection associations should also show alternative paths as part of personal advice and thus initiate or suggest other forms of adult legal representation as part of the clarification.

Elected adult representation

The legal institution of an elected adult representative was introduced through the 2nd Adult Protection Act. The elected adult representation is possible if a person with reduced ability to make decisions does not have a representative and can no longer establish a power of attorney (Section 264 of the ABGB new version), but the person with reduced ability to make decisions wants a specific representative. While the establishment of a power of attorney requires full decision-making ability, an elected adult representation can be agreed between the person represented and the representative even if the ability to make decisions is reduced (also in the case of the adult representative order (§ 244 ABGB new version), in which a person is designated or excluded as an adult representative, a reduced ability to make decisions is sufficient).

The agreement between the person represented and the elected adult representative is a power of attorney contract (§§ 1002 ff ABGB) in which the powers of representation and the scope of the representation of the adult representative are specified (§ 265 ABGB new version). The orders from the power of attorney are non-binding for the court (§ 274 ABGB) and it can also ignore the will of the person concerned or order contrary decisions.

One or more persons close to the person represented come into question as the elected adult representative (Section 264 ABG new version) and the selected adult representative is created when it is entered in the Austrian Central Agency Directory (Section 245 (2) in conjunction with Section 267 (1) ABGB new version). It is mandatory that the chosen adult representation, after the instruction, is set up personally and in writing in front of a notary, lawyer or adult protection association (§ 266 Paragraph 1 ABGB new version).

Legal adult representative

Through the 2nd Adult Protection Act, the previously existing power of representation for next of kin has been significantly expanded and strengthened and made legal adult representation. Legal adult representatives are close family members (§§ 268 ff ABGB new version). The closest relatives of the person represented are the parents and grandparents, children and grandchildren of legal age, siblings, nieces and nephews of the person of legal age, their spouse or registered partner or their partner (partner if they have lived in the same household with them for at least three years) as well as the Person designated by the adult in an adult representative order (Section 244 in conjunction with 268 Paragraph 2 ABGB new version).

In contrast to the previous trustee law, there are no longer any restrictions that are very relevant in practice with regard to the area of ​​activity (Section 269 Paragraph 1 ABGB new version), but the time limit for appointment is limited to three years (Section 246 Paragraph 1 Item 5 ABGB new version) and must then be re-entered in the Austrian Central Representation Directory (ÖZVV). The entry in the ÖZVV by a notary, a lawyer or an adult protection association is a prerequisite for the effectiveness of the selected adult representation (§ 270 Paragraph 1 in conjunction with § 245 Paragraph 1 ABGB new version) and before the entry, the adult representative and the person represented are informed about the nature and to personally instruct the consequences of adult representation, the possibility of objection at any time and the rights and obligations of the legal adult representative (Section 270 Paragraph 3 ABGB new version).

Legal adult representation is not possible if the person to be represented has previously objected to such an objection and this objection has been registered in the Austrian Central Representation Register (Section 268 (1) (4) ABGB).

Legal representation of adults

The judicial representation of adults replaces the previous guardianship (see §§ 271 ff ABGB new version). According to the will of the legislature, legal adult representation should only take place when all other forms of representation are no longer sufficient or possible (Section 271 in conjunction with Section 274 of the ABGB new version).

Transitional provisions

Trustees existing until July 1, 2018 were automatically converted into legal adult representation (Section 1503, Paragraph 9, Item 10 ABGB). Appointed trustees automatically became legal adult representatives , without the order of precedence according to § 274 ABGB being observed (§ 1503 Abs. 9 Zif. 11 ABGB). These new legal adult representatives must adhere to the legal situation after July 1, 2018, and the claims for compensation are also regulated according to the new law, provided that at least half of the accounting period is after July 1, 2018 (Section 1503, Paragraph 9, Item 13 ABGB).

Order

As is so far if a full year-old with an intellectual disability or mental illness is unable to carry out certain matters for themselves, without running the risk of being discriminated against, an adult representative (former trustee ) ordered. In future, however, the ability to make decisions (§ 24 ABGB new version) should be given significantly more weight, so that the areas of responsibility of the adult representative must (should) be defined more narrowly than previously with the guardianship. The ability to act is not restricted by the adult representation (Section 242, Paragraph 1 of the ABGB new version) and the representation must also be terminated when the transferred matter has been settled. The adult representative must immediately work towards this at the court (Section 272 (2) ABGB new version).

As before, physical disabilities and addictions are not grounds for appointing an adult representative. If someone can manage their own affairs despite a disability or mental illness - for example with the help of their family or psychosocial services - no adult representative should be appointed as before.

Legal proceedings

As in the case of trustee law up to now, the necessity of appointing an adult representative must first be proven in court proceedings. As before, the contact person remains the guardianship judge of the district court that is responsible for the place of residence of the person concerned.

The district court decides in the proceedings outside of disputes . The judge must first get a personal picture of the person concerned during an initial hearing.

The judge has been able to initiate clearing proceedings since July 1, 2007. As a result, a clearing trustee checked the living conditions of the person concerned and suggested alternatives to appointing a representative. With the Adult Protection Act, the clearing procedure is mandatory, which was used only little in the previous guardianship procedure.

Meets the conditions for the appointment of a representative adults after performing the clearing procedure, and no other form of representation can still be claimed, as an opinion is one expert for psychiatry catch. The court can only decide - after an oral hearing has been carried out - once the expert opinion has been submitted. If the person concerned refuses to take part in the verbal hearing and to prepare an opinion, the court can also make a decision in his absence and without any further hearing. In a decision of the court on the appointment of an adult representative, the (limited) areas of responsibility of the adult representative must be expressly recorded.

A judicial representation of adults arises with the appointment by the court (§ 245 Abs 3 ABGB new version).

tasks

The range of tasks must be determined individually by the judge for each case (Section 242 (2) ABGB new version). The tasks are based on the specific needs of the person concerned and the severity of the impairment or mental illness . With every appointment as an adult representative, the matter of personal care is included in any case. What is meant by this is to strive to provide the necessary medical and social care for the person. An adult judicial representative may only be appointed for individual or several matters that are currently to be worried and specifically identified, and after the transferred matter has been dealt with, the adult judicial representation is to be restricted or terminated. The court-appointed adult representative himself must immediately work towards this in the court.

Examples:

  • Individual matter (e.g. for representation in proceedings at the pension insurance company)
  • A group of matters (e.g. for "income and asset management", for "representation before authorities", "consent to medical treatment " ...).

Even an adult representative is not obliged to actually take care of the person concerned. However, he is obliged to organize and ensure medical care and social care to the extent necessary (§ 251 ABGB new version).

Person of the adult judicial representative

Priority should be given to appointing a person who is close to the adult and who is suitable for the task. Only if such a person is not available, an adult protection association (§ 1 ESchuVG) is to be appointed with the consent of the adult representative. Also comes an adult protection society out of the question, as an Austrian can Notar (notary candidate) or registered in Austria in the law list Lawyer (Associate) or other suitable person be ordered.

According to the decision (6 Ob 145 / 18v) of the Supreme Court, the will of the person represented is only considerable, the person concerned can (still not) choose his adult representative himself. This is allegedly necessary for the "good of the person concerned".

Adult representatives - with the exception of adult protection associations - can only take on a maximum of 15 adult representatives (Section 243 (2) ABGB new version). Lawyers and notaries or trainee professionals, provided they are entered in the adult representative list of the relevant bar association, can also take on more representations. Several adult representatives can only be used for one person with different areas of activity and entered in the Austrian Central Representation Directory (Section 243 (3) ABGB new version).

As a precautionary agent and adult representative, the following are fundamentally excluded (Section 243 (1) ABGB new version):

  • who is entitled to protection himself in the sense of § 21 para. 1 ABGB,
  • if an exercise of representation beneficial to the well-being of the adult cannot be expected, e.g. B. because of a criminal conviction, or
  • if someone is dependent on or in a similarly close relationship with an institution in which the adult is staying or by which he or she is looked after.

Duration of the order

The appointment of the judicial adult representative expires three years after the resolution has been passed. The court can, however, pass a renewal decision before the appointment expires (Section 246, Paragraph 1, Item 6, ABGB new version).

Group of people

Related persons

In principle, the court should appoint a family member or another person of trust of the person concerned to be the adult representative (Section 279 ABGB new version).

societies

Since 1984 there have been associations for guardianship recognized by the Ministry of Justice in Austria (now adult representations / adult protection associations). The full-time and volunteer employees of an association are appointed if no related person is available for this task or if there are other special requirements associated with adult representation.

Lawyers or notaries

You will then be used as an adult representative if there are predominantly legal matters in which the person concerned needs support and an adult protection association cannot be considered.

Subject to approval

In principle, a person represented can continue to carry out legal transactions in daily life himself. The court can order a reservation of approval within the framework of the elected or judicial adult representation, so that the represented can only undertake certain actions with legal effect if the approval is granted (Section 242 (2) or Section 265 (2) ABGB new version). The legal transaction remains ineffective pending approval. Legal transactions of daily life, which do not exceed the living conditions of the person represented, become - unless there is a special reservation of approval to the contrary - with the fulfillment of the obligations affecting them retrospectively legally effective (§ 242 Paragraph 3 ABGB new version).

In the case of legal adult representation and the power of attorney, a reservation of approval is generally not provided.

Process capability

In civil proceedings that fall within the area of ​​responsibility of the adult representative, the represented person can no longer take effective legal action (partial legal incapacity).

Custody

The adult parent who has been appointed an adult representative can continue to take custody of their children within the scope of their decision-making ability, as long as this custody is not restricted or restricted by the court, in accordance with the UN Convention on the Rights of Persons with Disabilities was withdrawn. Until the change in the legal situation on July 1, 2018, the guardian was immediately and completely withdrawn from custody and asset management of his child by the then applicable law (ex lege).

Contact obligation - contact right

As before, contact between the adult representative and the person being represented must take place at least once a month if possible. Otherwise this has to be done depending on the situation (§ 247 ABGB new version). There is no longer any obligation to contact if the adult representation exclusively covers legal or property matters, which affects a large part of the cases and may be inconsistent with regard to remuneration.

A significant strengthening of the rights of the relatives of the person represented in court proceedings as well as vis-à-vis adult representatives or the court in the process of appointing, changing or terminating the representation was not provided for in the new Adult Protection Act. Upon request, spouses, registered partners or cohabiting partners as well as parents and children of the person represented only receive a right to information regarding the mental and physical condition of the person represented and their place of residence (Section 248 (2) ABGB new version) and must now be notified by the court about the initiation of the proceedings (Section 127 AusStrG ).

An authorized representative or adult representative can be released from the duty of confidentiality (§ 248 Paragraph 1 ABGB new version) of the person represented who is capable of making decisions.

Life situation report

The adult representative must submit a report on the life situation of the person represented to the court at the beginning and at the end of the activity and then annually, usually at the end of the year (Section 259 (1) ABGB new version). This report should include the following:

  • Design and frequency of personal contacts,
  • Place of residence of the person represented,
  • their mental and physical condition as well
  • List and description of matters concerned in the past year and matters to be concerned in the coming year.

In the meantime, the court can at any time instruct the adult representative to submit such a report or restrict this obligation (see e.g. exemption for immediate family members and adult protection associations).

The life situation report can also be made together with the accounting.

Billing obligation

An adult representative who is (also) responsible for the financial affairs of the person concerned must record the financial status in writing at the beginning and at the end of the substitution (usually within four weeks of the beginning). In addition, invoices must be submitted on an ongoing basis.

Invoices are submitted to the court in writing at specific intervals (maximum three years). The income and expenses are listed and, if necessary, invoices are presented. This should enable the court to monitor the financial conduct of the adult representative vis-à-vis the person concerned and, if necessary, to issue instructions to the adult representative or to take other measures. The court can also restrict the reporting obligations of the adult representative (see e.g. exemption for immediate family members and adult protection associations).

Property matters of the extraordinary business enterprise must in any case be approved in advance by the court (Section 258 (4) ABGB new version). Every adult representative is obliged to keep invoices and receipts and to notify the court of sales / acquisitions of over EUR 15,000.00, as well as the acceptance of payments over EUR 10,000.00. If there are concerns or if the well-being of a person represented is at risk, the court has to issue the necessary dispositions to safeguard the well-being at any time (Section 259 (4) ABGB new version). In the case of a court, a judicial officer is usually responsible for this supervision , who is in turn supervised by a judge.

Reimbursement of expenses or compensation

costs

The legal adult representative must be reimbursed for the cash out-of-pocket expenses necessary for the appropriate exercise of adult legal representation, the actual expenses and reasonable costs of liability insurance taken out to cover liability in accordance with Section 249, Paragraph 1 of the Austrian Civil Code, insofar as they are not borne directly by third parties according to statutory provisions ( Section 276 (4) ABGB new version).

The elected and legal adult representative are only to be reimbursed the above-mentioned costs by the person represented, provided that this would not jeopardize the satisfaction of their vital needs (§ 249 Paragraph 2 ABGB new version).

Compensation for the adult judicial representative

The legal adult representative can assert compensation, remuneration and reimbursement of expenses (see § 276 AGBG new version).

Annual compensation

The legal adult representative is entitled to annual compensation of five percent of all income of the person represented after deduction of the taxes and duties to be paid. If the value of the represented person's assets exceeds 15,000 euros, two percent of the additional amount must be paid annually in compensation (Section 276 (1) ABGB new version).

The court can reduce the compensation for special reasons or increase the compensation to up to ten percent of the income and up to five percent of the excess of the assets (Section 276 (2) ABGB new version).

Remuneration

If the legal adult representative has special professional knowledge and skills (e.g. a notary or lawyer), he may under certain circumstances assert a claim to appropriate remuneration (in addition to compensation) if he has these special professional knowledge and skills for the person represented has used (§ 276 Paragraph 3 ABGB new version).

liability

The authorized representative or adult representative are liable to the person represented for any damage caused by their fault. The court can moderate or completely waive the obligation to pay compensation if it would hit the representative unreasonably hard, taking into account all circumstances, in particular the degree of fault or his particular close relationship with the person represented (Section 249 (1) ABGB new version).

Official liability (§ 1 AHG in conjunction with § 277 ABGB) only applies in the event of damage to the person concerned by the adult representative (trustee) if the adult representative (trustee) has acted in compliance with a judicial instruction. Otherwise, the adult representative (trustee) is personally liable for culpable and unlawful behavior.

Termination of adult representation

The power of representation of an authorized representative or an adult representative ends (Section 246 (1) ABGB new version):

  1. upon the death of the person represented or their representative,
  2. by judicial decision,
  3. by entering the revocation or the termination of a health care proxy or the elimination of the insured event in the Austrian Central Representation Directory,
  4. by entering the revocation or the termination of an elected adult representation in the Austrian Central Representation Directory,
  5. in the case of a legal adult representation by entering the objection of the person represented or their representative in the Austrian Central Representation Directory or at the end of three years, unless it is entered again beforehand, or
  6. in the case of a judicial representation of adults no later than three years after the first instance resolution on the appointment, unless it is renewed; the change or transfer of adult representation does not extend this period.

For the represented person to revoke or object, it is sufficient for them to indicate that they no longer want to be represented. It cannot legally waive these options in advance. The entry of the revocation or the objection must be made at the request of the person represented or their representative.

According to Section 246 (3) ABGB new version, the court can order the termination of one of the power of attorney or the elected or statutory adult representation and, if necessary, appoint a judicial adult representative if the representative does not act or acts in breach of duty or otherwise in the interests of the person represented. It can also delegate the tasks to someone else.

Transfer of adult representation

A transfer of the obligations and rights from an adult representation to another person is possible with simultaneous termination of the adult representation for the former representative. However, the case law (OGH in 7 Ob 136 / 19d) does not consider it sufficient if the person represented expresses the wish that another adult representative should be appointed. A stable childcare situation is more important than the desire of the person represented to change the adult representation. This jurisprudence may contradict the meaning and purpose of adult representation since July 1, 2018 (2. ErwSchG) per se and the increased consideration of the decision-making ability of the person represented within the meaning of the UN Convention on the Rights of Persons with Disabilities.

Summary of important differences to the previous trustee law

With regard to the previous trustee law, even more restrictions are now provided in adult protection law for the benefit of the person represented. These are e.g. B.

  • Limitation of the time and factual appointment of an adult representative,
  • mandatory clearing procedure,
  • Maintaining the legal capacity of the person represented, as far as this is only possible in some way (Section 241 (1) ABGB new version).
  • Duty to provide information - the adult representative must now inform the person represented in good time of every intended decision and give them the opportunity to comment on it (Section 241 (2) ABGB new version, in the previous trustee law only for "important" decisions). If the person represented reveals that they are rejecting the planned act of representation, this must be avoided in the event of any other legal ineffectiveness (for the liability of the adult representative, see Section 249 (1) ABGB new version), unless the well-being of the person represented would otherwise be seriously endangered (§ 250 Paragraph 2 ABGB new version),
  • the right of the person represented to have personal contact with other people and their correspondence may now only be restricted by the pensioner or adult representative if their well-being would otherwise be significantly endangered (Section 250 (4) ABGB new version). In the past, this had led to considerable problems when trustees restricted the right of contact with family members, allegedly for the benefit of the guardian.
  • The custody of a parent for whom an adult representative has been appointed is no longer automatically terminated by law, but this custody of minor children must now be expressly restricted or withdrawn by the court.

Legislative procedure and transition law

On January 17, the essential reform of the guardianship law was decided in the Council of Ministers (2nd Adult Protection Act) and on March 14, 2017 the reform of the guardianship law was passed in the judicial committee of the National Council.

With the votes of all parliamentary parties, the Adult Protection Act was passed in the Austrian National Council on March 30, 2017 . It has been described by many speakers as a milestone in judicial policy. The guiding principle of the government bill is to promote the autonomy of those in need of representation . After the unanimous decision of the Federal Council of April 6, 2017 not to raise any objection to the Adult Protection Act, the reform of the guardianship and the entry into force of the Adult Protection Act have been completed in terms of legislative procedure and legal technology and the law is part of the legal status of the Republic of Austria.

The transition period begins with the entry into force of the most important provisions on July 1, 2018. In the case of existing guardianships, which then ex lege become adult representatives (Section 1503, Paragraph 9, Item 10 ABGB) - there is a comprehensive reservation of approval for the entire area of ​​activity until June 30, 2019 - even without a court order. After June 30, 2019, persons for whom an administrator was appointed before July 1, 2018, is only subject to approval if and to the extent that it is ordered by a court . (§ 1503 Paragraph 9 Item 12 ABGB). Subsequently, in a renewal procedure (Section 1503, Paragraph 9, Item 14 of the General Civil Code), the approval reservations have to be adjusted restrictively. If the court does not act by January 1, 2024, adult representation expires automatically (Section 1503, Paragraph 9, Item 14 of the Austrian Civil Code).

Youth representatives and adult representatives in clubs and associations

In clubs and associations, youth representatives and adult representatives can be appointed to ensure a balanced representation of young people and adult members, who bring together the different interests in the sense of a common strengthening of the association. These adult representatives are not regulated in the Adult Protection Act.

See also

literature

  • Ganner: The new Austrian adult protection law; BtPrax 2018, p. 128

Web links

Wiktionary: Kuratel  - explanations of meanings, word origins, synonyms, translations
Wiktionary: Supervisor  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ § 239 Paragraph 1 ABGB new version Any representation of the person concerned is therefore subordinate (Section 240 Paragraph 1 ABGB new version). See also: 2nd Adult Protection Act in ZaK 2/2017, p. 30.
  2. ↑ Published in Austria on October 26, 2008 in Federal Law Gazette III No. 155/2008.
  3. ↑ Draft assessment of an amendment to guardianship law (2nd Adult Protection Act) , website of the Federal Ministry of Justice , September 12, 2016, last accessed on April 23, 2017. See also: Concluding observations on the initial report of Austria, adopted by the Committee at its tenth session (2–13 September 2013) , UN Report, 30 September 2013 (English - private German translation: BIZEPS: Translation of the recommendations for action of the UN state examination of Austria ).
  4. ↑ "nF" means "new version" and refers to the provisions of the ABGB that will come into effect on July 1, 2018.
  5. ↑ Under medical treatment (Section 252, Paragraph 1 of the ABGB new version), those that are set or ordered by doctors are to be subsumed if there is a medical indication for the treatment. This applies to diagnostic, therapeutic, nursing, preventive measures, rehabilitation or obstetrics, etc.
  6. ↑ § 254 paragraph 1 ABGB new version Section 131, Paragraph 4 of the Foreign Trade Act.
  7. ↑ § 253 Paragraph 4 ABGB new version.
  8. ↑ (Section 252 Paragraph 4 and Section 253 Paragraph 3 ABGB new version).
  9. ↑ Explanations of the government bill 1461 BlgNR 25. GP 32.
  10. ↑ Accounting , website: justiz.gv.at.
  11. ↑ Information brochure: Adult protection law, things worth knowing for representatives, representatives and interested parties, published by the Federal Ministry for the Constitution, Reforms, Deregulation and Justice, December 2017.
  12. ↑ Power of attorney effective before July 1, 2018, remain valid. The occurrence of the insured event can only be entered in the Austrian Central Representation Directory after June 30, 2018 in accordance with Section 263 in the version of the 2nd ErwSchG. The provisions of the sixth main part of the first part in the version of the 2nd Adult Protection Act apply to such power of attorney. Power of attorney whose coming into effect was registered in the Austrian Central Representation Directory before July 1, 2018, must be treated as if the registration had taken place after this point in time (Section 1503, Paragraph 9, Item 15 ABGB).
  13. ↑ See motives or exceptional situation z. B. Katharina Schneider "Health care proxy. Not sexy, but important." in Handelsblatt on October 17, 2014.
  14. ↑ See: 6 Ob 145 / 18v.
  15. ↑ When selecting the legal adult representative, the court should take into account the needs of the adult representative and their wishes, the suitability of the adult representative and the matters to be dealt with, and adult representatives should primarily be persons who have a health care proxy, an agreement of a elected adult representative or an adult representative order. However, this order is non-binding for the court and without any sanction (§ 273, § 274 ABGB). According to § 1503 Paragraph 9 No. ABGB, when selecting the judicial adult representative, attention must be paid to trustee orders within the meaning of Section 279 (1) in the version valid up to the 2nd Adult Protection Act even after 30 June 2018 .
  16. ↑ The adult representative order must also be drawn up personally and in writing before a notary, lawyer or adult protection association.
  17. ↑ This is new - Section 268 (2) ABGB new version.
  18. ↑ Authorizations to represent next of kin who were registered before July 1, 2018 remain in effect and end at the end of June 30, 2021 at the latest. After June 30, 2018, Sections 284b to 284e continue to apply to such representatives 2nd ErwSchG applicable version as well as § 246 paragraph 3 in the version of the 2nd ErwSchG to apply (§ 1503 paragraph 9 item 17 ABGB). The powers of representation of next of kin who were not registered before July 1, 2018 , automatically expire on July 1, 2018.
  19. ↑ help.gv.at: Appointment of an administrator ( memento from April 24, 2017 in the Internet Archive )
  20. ↑ OGH 7 Ob 68 / 19d.
  21. ↑ 2nd Adult Protection Act in ZaK 2/2017, p. 32.
  22. ↑ See also OGH in 9 Ob 53 / 19p.
  23. ↑ With regard to the person of the adult representative, the relatives have the right to appeal and can file a revision appeal (limited legitimation of legal remedies within the meaning of Section 127 Paragraph 3 in conjunction with Section 128 Paragraph 1 AusStrG. According to OGH in 7 Ob 136 / 19d, this limited legal remedy also applies in proceedings to the transfer of legal adult representation - regardless of whether the transfer is ordered or rejected.). A person of full age who is capable of making a decision can only decide for himself or herself about the change of place of residence (Section 257 (1) ABGB new version).
  24. ↑ Accounting , website: justiz.gv.at.
  25. ↑ Information brochure: Adult protection law, things worth knowing for representatives, representatives and interested parties, published by the Federal Ministry for the Constitution, Reforms, Deregulation and Justice, December 2017.
  26. ↑ Accounting , website: justiz.gv.at.
  27. ↑ Information brochure: Adult protection law, things worth knowing for representatives, representatives and interested parties, published by the Federal Ministry for the Constitution, Reforms, Deregulation and Justice, December 2017.
  28. ↑ Liability of the trustee for failure to take legal steps to assert a claim ?, Zak 2017/266.
  29. ^ New adult protection law passed in the Council of Ministers , APA-OTS broadcast of January 17, 2017.
  30. ↑ Justice Committee approves guardianship reform , Austria Press Agency | APA-OTS broadcast of March 14, 2017.
  31. ↑ National Council unanimously resolves to reform the guardianship , Austria Press Agency | APA-OTS broadcast of March 30, 2017.
  32. ↑ Federal Council approves guardianship reform , APA-OTS broadcast of April 6, 2017.