Most people wish for a long, self-determined life. Unfortunately, however, illnesses and unforeseen events sometimes lead to the fact that one is dependent on the help of other people. If someone loses the ability to see and judge and is no longer able to make their own decisions, an adult representative is always appointed by the competent court. This representative must then take care of the affairs of the person concerned and is subject to the control of the court.
However, in order to maintain self-determination as far as possible in such a case, it is advisable to have a power of attorney for pension purposes (hereinafter POAPP) to determine who does which business for you and to what extent, if you are no longer able to do so yourself. A POAPP is a more specific type of power of attorney. It only becomes effective when the party granting the POAPP has lost its ability to make decisions and make judgements. With such a power of attorney, the involvement of the court can also be reduced to a minimum, which can be particularly decisive in more complex family constellations or in connection with family businesses.
A POAPP must be granted in person and must be drawn up in writing before a notary, lawyer or adult protection association and registered in the Austrian Central Register of Representatives. Only then is it formally established. However, this POAPP only becomes effective when a medical certificate confirms the loss of the ability to see and judge.
In principle, there is a great deal of freedom in shaping both the content and the nature of such a POAPP. However, a preventive power of attorney must clearly specify either the individual matters or types of matters. It would be inadmissible to grant a power of attorney “for all matters” or “all matters of a pecuniary nature”.
In addition to granting the power of attorney for certain matters, the person giving the power of attorney may also determine the person who is to represent him in these matters. It is also permissible to appoint several persons for a certain area, who are then to act jointly. It is also permissible to appoint different representatives for different areas. It is also advisable to appoint an adult representative (formerly a trustee) in the power of attorney.
This adult representative is responsible for all those matters which the principal did not dispose of in his POAPP and is appointed by the court. If, for example, a pension plan power of attorney does not specify who is to represent the principal in banking transactions, this is the responsibility of the adult representative. In this respect, it is advisable to appoint an adult representative as well, so as not to leave this decision to the court. It is also permissible to appoint a pension fund representative as an adult representative. In any case, the court is required to appoint the appointed person as the adult representative.
In principle, a pension fund proxy can be granted to any person of full age who is capable of making decisions in all areas. However, it is not permissible to appoint as proxy anyone who has been convicted of a criminal offence or who is in a relationship of dependence or other close relationship with a hospital, home or other institution in which the person giving the POAPP is staying or is being cared for.
A living will can also be included in the POAPP, but is subject to special formal requirements that must be observed. Medical treatment directly affects the physical integrity of the person concerned and can have very far-reaching personal consequences. For this reason, any medical treatment requires the patient’s consent. If a patient is not able to express his or her will regarding treatment, an attempt is made to find out the supposed will of the person concerned with the help of relatives, health care representatives and adult representatives. In order to maintain self-determination in this case, there is the possibility to draw up a so-called living will in advance. This can stipulate, for example, that one refuses artificial respiration or nutrition or resuscitation measures.
First of all, a comprehensive medical education must take place. Then, for reasons of preservation of evidence and protection against haste, the Patient Decree must be drawn up in writing and in person before a lawyer, a notary or a legally qualified employee of a patient representative or an adult protection association. The validity of such a binding Patient Decree is limited to a maximum of 8 years, whereby the patient may specify a shorter period. After expiry of the period of validity, the Patient Decree must be renewed. However, an early revocation is possible at any time.
In order to ensure that the attending physician is informed about the existence of the Patient Decree and its contents, the Patient Decree must be included in the electronic health record ELGA. However, the patient has the opportunity to object to this inclusion.
If a Patient Decree does not meet the strict formal requirements, it is referred to as “another Patient Decree”. This does not have the same binding force, but is used by the decision-makers as an indication of the patient’s will.
