Contingency planning with proxies in Austria

1. Are proxies used in contingency planning?

Austrian civil law provides for the instrument of a precautionary proxy (Vorsorgevollmacht) as well as provisions on (standard) proxies.

It is noteworthy that such precautionary proxy only becomes effective when the issuing person is no longer capable of making decisions on the covered matters. Therefore, such proxy is used in contingency planning in combination with a standard proxy that becomes effective immediately after its issuance.

2. In which areas are proxies used (banks, real estate, shares)?

A precautionary proxy may have any content for which a representation is possible. In practice, a precautionary proxy often covers the following matters:

  • representation vis-à-vis authorities and other institutions
  • residence and housing matters
  • financial matters (e.g. ongoing income, real estate, taxes, shares) including a bank proxy
  • shareholder rights.

3. Are there any formal requirements for proxies? For specific areas? What is common?

A precautionary proxy must be issued in writing in front of a public notary, an attorney or an officially recognized guardianship association (Erwachsenenschutzverein).

The precautionary proxy and the loss of the capability to make decisions (i.e. effective date of the precautionary proxy) must be registered in the Austrian Central Directory of Representations (Österreichisches Zentrales Vertretungsverzeichnis).

Under general Austrian civil law, there are in principle no formal requirements for a standard proxy. Of course, written form is always advisable and also required for certain matters, e.g. exertion of shareholder rights, establishment of a corporation, donations (see also below at no. 7).

4. Can proxies be used beyond death (postmortal and/or transmortal proxies)?

A precautionary proxy expires upon the death of the represented person.

However, the precautionary proxy may be combined with a post mortal proxy. In such case, the power of representation may continue based on a standard proxy and the proxyholder may represent the estate until its legal transfer to the respective heirs.

5. What is the relationship between a proxy document and a living will?

A living will (Patientenverfügung) is a separate instrument under Austrian civil law. It is a written declaration of intent by which a person refuses medical treatment (e.g. life-prolonging measures) and which shall take effect if the person is not able to make a decision at the time of treatment.

Its issuance requires a comprehensive medical consultation in advance, and it cannot be replaced by a precautionary proxy.

6. Is it possible to centrally deposit or register proxies?

A precautionary proxy must be registered in the Austrian Central Directory of Representations. However, a standard proxy is not entered into any register.

7. Is there anything special that should be considered?

It should be carefully analyzed if there are special formal requirements for certain matters covered by a precautionary proxy.

For example, in case of limited liability companies, a proxy must be in writing and must be specifically issued for the exercise of shareholder rights to serve as a valid voting proxy.

Portrait of Arno Zimmermann
Arno Zimmermann
Attorney-at-Law for Corporate Law/M&A and Litigation
Vienna
Portrait of Daniel Dibon
Daniel Dibon
Associate
Vienna
Daniel Kropf
Portrait of Lukas Peissl
Lukas Peissl
Attorney-at-law for Corporate Litigation, Construction Litigation and Private Clients
Vienna
Portrait of Thomas Aspalter
Thomas Aspalter
Associate
Vienna