Enduring powers of attorney/­patients‘ provision

An enduring power of attorney is essentially a precautionary tool in case the person giving the power of attorney should lose the ability to make decisions. According to its content, it therefore only becomes effective when the person giving the power of attorney actually loses the decision-making capacity required to take care of the matters entrusted to her/him.

In such cases, the enduring power of attorney determines who may act as a representative for this person and for which area of activity it should apply.

The scope of the representation is to be determined individually, which can either cover a very specific transaction (e.g. the sale of a property) or apply to general matters (e.g. asset management).

The enduring power of attorney must be personally established in writing before a notary, a lawyer or an adult protection association (§ 1 ErwSchVG).

The prerequisite is that there is legal capacity at the time of its establishment.

In principle, any person of legal age can be authorized to do so, unless they are unable to take care of their own affairs sufficiently or are dependent on an institution that cares for the person (e.g. nurses in a home). The decision as to who should be the assignee of a enduring power of attorney should therefore be well considered and will usually be made by a person with whom a certain relationship of trust already exists, since there is only very limited control by the court.

In the further consequence the enduring power of attorney must be entered in the Austrian Central Register of Representatives (ÖZV).

A patient’s provision, on the other hand, is a declaration of intent with which a patient refuses medical treatment and which is intended to take effect if the patient is not capable of making decisions at the time of treatment. In a binding advance directive, the medical treatments that are the subject of the refusal must be specifically described or must clearly emerge from the overall context of the directive. A patient’s provision can bind a patient’s will to refuse medical treatment. However, even if it does not meet all legal requirements and is therefore not binding in itself, it can still be used as a basis for determining the patient’s wishes if the worst comes to the worst, and can therefore have a certain stipulation.

A patient’s provision is binding if it is in writing, stating the date

  • before a lawyer; or
  • before a notary; or
  • before a legally qualified employee of the patient‘s representatives; or
  • before a legally qualified employee of an adult protection association (depending on technical and personnel possibilities);

A patient’s provision can only be drawn up in person. The patient must be capable of making decisions when drawing up a patient’s provision. The creation of a binding patient’s provision must be preceded by comprehensive medical information, including information about the nature and consequences of the patient’s provision for medical treatment.

Every patient’s provision can also be registered in the Patients‘ Provision Register if desired.

A binding patients‘ provision is generally limited in time and loses its binding force no later than eight years  after having been drawn up, unless the patient has specified a shorter period.

In any case, the patient’s provision can also be revoked at any time by the patient him/herself.

We would be happy to help you in our office with the establishment of health care proxies and patients‘ provisions.