Why a lasting power of attorney is essential in Austria
A fall, a stroke, a car accident – and suddenly life as you know it is turned upside down. What many people do not know is that in Austria, even your closest family members are not allowed to make decisions on your behalf in an emergency without an appropriate power of attorney. The bank will not give relatives access to your account, they have no say in treatment decisions at the hospital, and even the running of a family business can falter.
Yet it would be so easy to plan ahead in good time: with a lasting power of attorney, you decide for yourself who may act on your behalf if you are no longer able to do so. Nevertheless, according to recent surveys, only around 3.5% of adults in Austria have created a lasting power of attorney. This article gives you a clear and practical explanation of everything you need to know about lasting powers of attorney in Austria – from creation and effect to revocation.
What is a lasting power of attorney?
A lasting power of attorney is a written authorization that takes effect when the principal loses the capacity to make decisions (Section 260 of the Austrian General Civil Code, ABGB). It allows you to designate a trusted person in advance who may act on your behalf in certain areas of your life – for example your spouse, your children, your parents or close friends.
A lasting power of attorney is one of the four forms of representation under Austrian adult protection law (Second Adult Protection Act, Federal Law Gazette I No. 59/2017). The other forms are elected adult representation, statutory adult representation and court-appointed adult representation. If created in good time, a lasting power of attorney takes precedence because it ensures the greatest degree of self-determination: you decide for yourself who represents you and in which matters – not a court.
Why is a family relationship alone not enough?
In Austria, spouses, children and parents have no automatic right of representation. Without a lasting power of attorney, the court must appoint an adult representative in an emergency – a process that costs time, money and nerves. What is more, the court may appoint a person you would not have chosen yourself. Anyone who has not created a lasting power of attorney places their decisions in the hands of the court – with all the delays and uncertainties this entails.
A lasting power of attorney prevents exactly this scenario: you decide – not the judge. It is an act of trust and of care for yourself and your family.
Which matters can a lasting power of attorney cover?
Under Section 261 ABGB, a lasting power of attorney may be granted for individual matters or for categories of matters. The law deliberately does not provide for a blanket general power of attorney covering all areas of life. The power of attorney is created to fit your personal circumstances.
Typical matters covered by a lasting power of attorney
Financial matters: Management of bank accounts, real estate, securities and other assets. The person you have appointed may, for example, make bank transfers, enter into contracts or manage investments.
Medical decisions: Consenting to or refusing medical treatment, choosing the hospital and communicating with the doctors treating you.
Residence and living arrangements: Deciding where you live or stay, and making decisions about moving into a nursing home or assisted living.
Representation before authorities and courts: The person you have appointed can represent you in administrative or court proceedings.
What can a lasting power of attorney not cover?
Strictly personal matters cannot be delegated to a representative and therefore cannot be covered by a lasting power of attorney. These include, for example, making a will, getting married, adopting a child and making an advance directive.
Lasting power of attorney vs. advance directive – what is the difference?
A lasting power of attorney and an advance directive are two different instruments: a lasting power of attorney governs representation by a trusted person, while an advance directive sets out binding medical wishes (e.g. refusing certain treatments). The two complement each other well and should ideally be created together.
How is a lasting power of attorney created?
The creation of a lasting power of attorney is clearly regulated in Section 262 ABGB and is subject to strict formal requirements:
- Created in person: A lasting power of attorney must be created personally and in writing before a lawyer, a notary or an adult protection association. It cannot be created through a representative.
- Duty to inform: The lawyer, notary or adult protection association before whom the lasting power of attorney is created must personally inform you about the following points:
- the legal consequences of a lasting power of attorney,
- the option of prohibiting the delegation of the power of attorney or of providing for joint representation by several appointed persons,
- and the option of revoking the power of attorney at any time.
- Registration in the ÖZVV: Once created, the lasting power of attorney is entered in the Austrian Central Register of Representation (ÖZVV). This registration is an essential step, as it ensures that the power of attorney can be found in an emergency and that its validity can be proven.
- Costs of a lasting power of attorney: The costs vary depending on where the power of attorney is created. With lawyers and notaries, the costs depend on the work involved in the individual case and on how complex the power of attorney is.
When does a lasting power of attorney take effect?
A lasting power of attorney only takes effect when the so-called “triggering event” occurs – that is, when a doctor confirms that you are no longer capable of making decisions in the matters covered by the power of attorney (Section 263 ABGB). Under Section 24(2) ABGB, a person is capable of making decisions if they can understand the significance and consequences of their actions in the relevant context, form their will accordingly and act in line with it.
The occurrence of the triggering event is also entered in the ÖZVV. Important: the triggering event may only be entered to the extent that the principal has actually lost the necessary capacity to make decisions. This means that if someone has lost the capacity to make decisions only with regard to medical matters, the power of attorney remains inactive for the time being in other matters (eg finances).
If there are justified doubts as to the loss of the capacity to make decisions, the triggering event or the suitability of the appointed person, the entry must be refused and, where appropriate, the guardianship court must be notified.
Can a lasting power of attorney be revoked?
Yes – and this is a particularly reassuring aspect: a lasting power of attorney can be revoked at any time – even if the capacity to make decisions is already impaired (Section 246 ABGB). To revoke it, it is sufficient for the person represented to indicate that they no longer wish to be represented. This option cannot be waived.
The revocation takes effect once it has been entered in the ÖZVV. A lasting power of attorney also ends:
- on the death of the person represented or of the appointed person,
- by court decision,
- or once a notice of termination has been entered in the ÖZVV.
If the person represented regains the capacity to make decisions, the fact that the triggering event no longer applies is also entered in the ÖZVV, and they once again decide on their own affairs themselves.
You retain your legal capacity
A common misconception: creating a lasting power of attorney does not automatically mean that you lose your legal capacity (Section 242 ABGB). As long as you are capable of making decisions, you continue to act for yourself. Only when the triggering event occurs can the appointed person act on your behalf – and even then, your personal will remains the guiding principle for their actions.
Conclusion: Plan ahead now and safeguard your self-determination
A lasting power of attorney is more than a legal document – it is an act of trust and of care for yourself and your family. The sooner you deal with it, the more certain you can be that everything will be arranged as you would want in an emergency. Do not wait until it is too late: only those who plan ahead in good time keep control over their own affairs.
Contact
Would you like to create a lasting power of attorney, or do you have questions about it? At Team Kindl, we will be happy to advise you personally and guide you through the entire process – confidentially, clearly and in a way that suits your individual situation. Contact us now.
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