Adult Representation

Adult Representation

Adult representation is a legally regulated protective instrument for adults who, due to a mental illness or similar impairment, are no longer able to manage their own affairs independently. Its purpose is to create a legal framework within which necessary decisions can be made and interests safeguarded, without unduly restricting the self-determination of the person concerned. The legal capacity of the person concerned is not automatically restricted by adult representation. They can still perform legally valid actions themselves if they possess the necessary decision-making capacity. Depending on its specific form, it can be initiated by the person concerned, undertaken by relatives, or ordered by the court.

Statutory representation for adults with limited decision-making capacity to legally manage their affairs.

Adult representation is always subsidiary. It may only be established if no other, less intrusive support, such as through relatives, social services, or a power of attorney for future care, is possible.

Legal Foundations

Adult representation is regulated in §§ 268 et seq. ABGB and was fundamentally reformed with the 2nd Adult Protection Act (ErwSchG). It replaces the former guardianship and comprises three central forms:

• Chosen Adult Representation
• Statutory Adult Representation
• Judicial Adult Representation

The aim is to strike a balance between self-determination and protection.

Sebastian Riedlmair
Harlander & Partner Attorneys „Eine fundierte rechtliche Beratung sorgt dafür, dass die Erwachsenenvertretung nicht nur gesetzeskonform eingerichtet wird, sondern auch den individuellen Bedürfnissen der betroffenen Person entspricht.“

Forms of Adult Representation

1. Chosen Adult Representation

Is determined by the person concerned themselves, as long as they are able to understand the basic meaning and consequences of an authorization. It is only possible if a power of attorney for future care can no longer be established.

It can be agreed that the representative acts only jointly with the person concerned (co-decision) or that certain declarations by the person concerned are only effective with the representative’s approval.

The agreement must be made before a lawyer, a notary, or an adult protection association and registered in the Austrian Central Register of Representatives (ÖZVV). A medical certificate confirming limited decision-making capacity must be submitted. Chosen adult representation is subject to regular judicial review.

2. Statutory Adult Representation

Comes into effect when an adult, due to a mental illness or similar impairment, cannot manage their own affairs, has no representative, or no longer wishes or is able to choose one. It only becomes effective if it is registered in the Austrian Central Register of Representatives (ÖZVV) and is limited to three years. Certain close relatives are authorized to act as representatives, including parents, grandparents, adult children and grandchildren, siblings, nieces and nephews, spouses, registered partners, and cohabiting partners if they have lived in the same household for at least three years.

The power of representation only arises upon registration in the ÖZVV. Before registration, the person concerned must be personally informed about the nature, consequences, and right of objection. The powers are exhaustively regulated by law and may include the following areas:

• Representation in administrative proceedings and administrative court proceedings, such as for applications, notifications, or proceedings before administrative authorities
• Representation in court proceedings on behalf of the represented person
• Management of income, bank accounts, assets, and debts
• Conclusion of contracts to ensure necessary care or support services
• Consent to medical treatments and related contracts
• Change of residence or conclusion of a care home contract
• Handling of other personal matters not already covered under health or residence
• Conclusion of other necessary legal transactions not mentioned in the preceding points

The statutory adult representative is obliged to submit an annual life situation report and, in the case of asset management, to render accounts. For matters of extraordinary business operations, such as the sale of real estate or the conclusion of long-term loan agreements, judicial approval is always required.

3. Judicial Adult Representation

Is ordered by the court only as a last resort (ultima ratio) if neither a chosen nor a statutory adult representation is possible. It may only be ordered for specifically designated matters that currently need to be managed. A blanket appointment for all matters is impermissible.

Primarily, agents under a power of attorney for future care, chosen adult representatives, or persons designated in an adult representative directive are appointed. Only if this is not possible, a close relative follows, subsidiarily an adult protection association, and in complex legal matters, a lawyer or notary.

In this form, the court orders a reservation of approval if it is necessary to avert a serious danger. It also appoints several judicial adult representatives whose powers must not overlap.

Rights and Obligations of the Adult Representative

An adult representative always ensures that the represented person lives as self-determined a life as possible. Decisions are made according to their own wishes, insofar as their health condition permits.

The adult representative regularly renders accounts to the court. This includes reports on the personal situation, for example, regarding residence, health status, and important events in the past year. If they also manage income or assets, they additionally prepare a detailed statement of accounts.

All personal information they acquire in the course of their activities is treated confidentially. This includes, among other things, health data, financial circumstances, or private matters.

They always apply for court approval for extraordinary legal transactions. This applies, for example, if they sell real estate, take out a loan, or accept a significant inheritance on behalf of the represented person.

In all forms of adult representation, the representative maintains personal contact at least once a month. They are only exempt from this if they exclusively undertake tasks that primarily require legal or financial expertise.

The management of income and assets is carried out according to the rules of trustee security. For actions exceeding ordinary business operations, judicial approval is always required.

The duty of confidentiality applies, with the exception of legally permitted disclosure to certain close relatives regarding mental and physical condition, residence, and scope of activity.

Establishment and Termination

Adult representation is established by:

• Registration in the ÖZVV (chosen or statutory)
• Legally binding court order (judicial)

It terminates by:

• Expiration after three years without extension
• Death of the represented person or the representative
• In the case of statutory and judicial adult representation, termination also occurs if the matter is concluded or the conditions for the appointment have ceased to exist.
• Judicial decision
• Objection in the ÖZVV

Your Benefits with Legal Assistance

• Legal advice on forms of representation: Clarification of whether a chosen, statutory, or judicial adult representation is appropriate and permissible in your situation.
• Examination of requirements: Assessment of whether the legal conditions are met to avoid unnecessary proceedings.
• Legally sound drafting and preparation of documents: such as adult representative directives, powers of attorney, or applications to courts and authorities.
• Representation in court proceedings: for example, in the appointment of a judicial adult representative or in disputes regarding the suitability of a representative.
• Enforcement and safeguarding of rights: e.g., in judicial review, approval procedures, or objections.
• Legal support for extension or termination: timely applications, formally correct justifications, and court proceedings.

Sebastian Riedlmair
Harlander & Partner Attorneys „Wer frühzeitig klare Regelungen trifft, bewahrt sich und seine Angehörigen vor unnötigen Konflikten und sorgt für Rechtssicherheit in schwierigen Lebenssituationen.“

Frequently Asked Questions – FAQ