Since 1 July 2007, the Sachwalterrechts-Änderungsgesetz 2006 (SWRÄG 2006, BGBl I Nr. 92/2006) (Law Amending the Guardianship Act) has introduced numerous essential amendments to be observed by persons wishing to make legal provisions for themselves should they find themselves no longer capable of taking actions or making decisions.
In contrast to the advance health care directive (or living will), the health care proxy (Vorsorgevollmacht) is a document with which an individual (primary individual) appoints a person who is to take actions or make decisions on behalf of the individual if he or she is no longer able to do so, for instance after an accident or in the event of old age dementia. Prior to the loss of legal capacity, ability to reason, power of judgement and communication, the principal (primary individual) determines who is to be appointed as the agent entitled to make decisions or act on his/her behalf. The scope of a health care proxy is wider than that of an advance health care directive (PatientInnenverfügung) and can thus also include the latter. Account must be taken of the fact that the agent appointed by the primary individual must not be in a relationship of dependency or otherwise closely related to a hospital, care home or another institution in which the principal (primary individual) is staying or is being treated or cared for.
The principal (primary individual) may determine for which matters the agent is to be responsible. It is also possible to grant the proxy to a number of persons. In such a case, it is recommended that it be determined in advance whether the agents are jointly entitled to make decisions and represent the principal or if they may conduct some or all matters independently of one another.
The legal effectiveness of the health care proxy is conditional on the principal having full legal capacity at time the health care proxy is established. Repeal of the proxy is possible at any time, thus also after the health care event has occurred. Both the establishment and the repeal of a health care proxy can be registered upon payment of the mandatory fee by any notary public or lawyer licenced in Austria with the Österreichischen Zentralen Vertretungsverzeichnis (ÖZW, the Austrian Central Representatives Directory ), in order to enable quick and easy access to data if necessary.
The ÖZW is not limited to principal residence addresses in Austria but explicitly enables foreign addresses. Thus this register is open to Austrians abroad and other persons residing abroad.
Establishing the deed
When establishing a health care proxy, certain formal requirements, which are similar to those for last wills, must be observed. The health care proxy may thus be either
- written or signed by the principal him/herself; or
- written by another person, signed by the principal him/herself and three witnesses; or
- established in the presence of a notary or lawyer or at a court.
Special requirements are to be observed when establishing deeds governing special matters, relating for instance to the approval of medical treatment for a serious health condition, a permanent change of domicile or extraordinary financial affairs. In all such cases, health care proxies must be established by notaries, lawyers or at a court. The costs for establishing these deeds vary on a case by case basis.
The entry into effect of a health care proxy, i.e. when the health care event occurs, must be registered by a notary and the agent is provided with a registration confirmation. This confirmation serves as a bearer document authorising the agent as such should he/she become active on behalf of the principal.