With the Second Protection of Adults Act (2. Erwachsenenschutz-Gesetz – 2. Erw- SchG) entering into force on 1 July 2018, the representation system for adults will have been re-vised based on a so-called four-pillar model consisting of enduring power of attorney, elec-tive, statutory and court-appointed representation. None of these forms of representation will automatically lead to a loss of legal capacity of the represented individual.

First Pillar: Enduring power of attorney

The already existing possibility to set up an enduring power of attorney remains a valid legal concept: With an enduring power of attorney, everyone has the possibility to choose a person themselves, who represents them with respect to a certain matter if they have lim-ited legal capacity, i.e. if they are no longer able to make decisions for themselves. The enduring power of attorney thus will not enter into force until loss of legal capacity occurs.
With an enduring power of attorney, the individual concerned can choose a person to rep-resent him or her in all asset-related issues, before public authorities and courts, vis-à-vis doctors in case of medical examinations and surgery, and in organising the accommodation in a nursing home. In order for an enduring power of attorney to become effective, it has to be entered into the Central Austrian Representation Register (Österreichisches Zentrales Vertretungsregister, ÖZVV).

Second Pillar: Elective representation

The purpose of elective representation is to fill a gap in the current system. Unlike in the case of the enduring power of attorney, an individual will still be able to choose a repre-sentative, even if they no longer have full legal capacity. If a person has any cognitive def-icits, such as the first stages of Alzheimer’s disease, they will still be able to choose a rep-resentative with legally binding effect. The prerequisite for this is that a person is at least (still) able to understand the basic legal scope of the power of attorney and to act accord-ingly. The party concerned must thus have the capacity to make decisions, which basically corresponds to the capability to comprehend and the faculty of judgement.
For a representative to be chosen, an agreement is concluded before a notary, lawyer or an adult protection association in the presence of the selected person, e.g. a family mem-ber, friend or acquaintance. The scope of representation is precisely defined in the power of attorney. However, it can also be specified that the representative may only make deci-sions together with the person represented.
In order to avoid abuse, a court will check each year, whether the chosen representatives fulfil their tasks and how the persons they represent are doing. Elective representation also needs to be registered in the ÖVZZ to have legal effect.

Third Pillar: Statutory representation

The already existing power of representation exercised by close relatives is transformed into statutory representation. If there is no enduring power of attorney, no chosen or court-appointed representative, statutory representation applies.
Pursuant to current laws, only parents, grandparents, children of full age and grandchil-dren, spouses, registered partners and life partners are defined as being close relatives. In the framework of the new statutory representation, the circle of relatives will be extended to include siblings, nieces and nephews.
Statutory representation becomes legally effective if it is agreed before a notary, lawyer or an adult protection association and upon registration in the ÖZVV. Prerequisites for reg-istration are a medical certificate stating that the person to be represented lacks the re-quired capability to comprehend and the faculty of judgement.
If relatives want to become representatives, they have to inform the person affected in advance. The person affected may object to this beforehand or at a later point in time, when the power of attorney has already become effective. This still applies even if the capability to make decisions has already been lost. The objection may also be limited to certain aspects of statutory representation. If the objection is brought before a notary or a lawyer, this has to be registered in the ÖZVV.
Statutory representation applies for transactions in everyday life, the assertion of social security claims or decisions with respect to medical treatments, including surgery. In any case, the wishes of the person concerned have to be taken into consideration. Statutory representation is limited to a maximum period of three years, it may, however, be re-newed. Moreover, the living conditions of the person concerned must be regularly moni-tored by the courts.

Fourth Pillar: Court-appointed representation

Court-appointed representation replaces the current guardianship system. If there is nei-ther a person with enduring power of attorney, nor a chosen or statutory representative, the court may appoint a representative.
Unlike with the current guardianship system, the powers and tasks of the statutory repre-sentative are restricted. From now on, the appointment by the court will only apply to spe-cific matters. The representation scheme ceases to apply after a specific matter it relates to has been dealt with, or after three years.
Before a representative can be appointed by the court, the representative has to be “cleared” by an adult protection association. In the course of this clearing process, it is re-viewed whether this form of representation is really necessary or if there might be other ways of representation.
Excluded from statutory representation are, in any case, last will, enduring power of attor-ney, advance healthcare directive (Patientenverfügung), marriage, adoption or acknowl-edgement of paternity.