2016: Decision making and legal capacity in dementia
Consent to medical treatment
Patients must consent to all forms of medical treatment. This is based on the notion of a civil law contract. Consent can be explicitly stated or implicitly implied by the act of turning up for the treatment or consulting the doctor. However, the consent must be related to a specific form of treatment of which the patient is aware of the implications. It is not necessary for consent to be expressed in writing although in practice, in many hospitals patients are asked to sign a form as proof that they were fully informed about the treatment and then consented to it (Leenen et al., 1994).
According to section 8 of Federal Hospital and Convalescent Homes Establishment Law of 1957 (KAKuG), special curative treatment, including operations, can only be carried out with the person's consent. If the person is incapable of consenting, consent can be given by their legal representative. Also, as stated in the section on guardianship (§ 282 of the General Civil Law), the guardians (trustees) are responsible for ensuring the medical and social care of their wards. According to § 283 of the General Civil Law, the Court must give authorisation, if the guardian’s consent to treatment is expected to have a lasting or serious impact on the person’s health. If the person in question does not resist the treatment, the guardian can also give consent provided that s/he has obtained independent expert advice.
The recent changes in guardianship law, which came into force on 1 July 2007, allow for two other possibilities, namely consent by a next of kin who has been granted agent’s authority (Vertretungsbefugnis nächster Angehöriger) or consent by a person (i.e. a trustee) who has a durable power of attorney (DPoA/Vorsorgevollmacht).
For example, it is possible for a competent person to appoint someone to make health care decisions on their behalf at a time in the future when they no longer have the necessary capacity to make health care decisions themselves. This is called a durable power of attorney for legal representation (referred to hereafter as DPoA). The DPoA only becomes effective when the person granting it loses legal capacity, insight and judgement or the ability to express him/herself (as attested by a medical certificate). A DPoA can cover all medical decisions (including serious medical treatment with lasting effect) provided that it was drawn up before an attorney-at-law, notary public or court and that the power to make such decisions was correctly registered in the document.
The next of kin who has been granted agent’s authority can only consent to treatment which is not expected to have a lasting or serious impact on the person’s health such as:
The treatment of straightforward medical conditions (for more complicated conditions/treatment, the consent of an appointed guardian is necessary, or consent by a person who has a durable power of attorney (DPoA));
The treatment of a psychiatric condition (for simple treatment only; if the person has been interned in a closed department or psychiatric institution, the law on forced internment would apply, or consent by a person who has a durable power of attorney (DPoA));
As next of kin are supposed to make decisions that are in the interests of the person they are representing, the refusal of basic care would not be justified. Basic care does not include artificial nutrition.
Under the Austrian Penal Code (§ 110), anyone who treats another without his/her consent, even if this is in accordance with the rules of medical science, is liable to a prison sentence of up to six months or a fine. The perpetrator will only be prosecuted if the person who received the unauthorised treatment so requests.
The right to refuse treatment
In the exact same manner as patients (or their representatives) must consent to all forms of medical treatment, they can refuse treatment. If a guardian’s refusal of treatment would endanger the health of the person in question consent to treatment can be given by the Court. Treatment without consent is forbidden by the Penal Code.
Consent to research/ clinical trials
Participation in clinical trials is governed by the Medicaments Law (N°185) of 1983 (Leenen et al., 1993). Participants must consent to their participation and such consent is only valid if they are capable of managing their own affairs, able to understand what is involved, aware of the significance of the trial and aware of any dangers involved. If a person fulfils these conditions and decides to participate, s/he retains the right to withdraw from the trial at any time. A person who has been interned (in a psychiatric ward or a nursing home) cannot give consent to clinical trials. According to § 284 of the General Civil Law, a guardian can only give consent in the exceptional case that the treatment provides immediate benefit to the health of the person in question. Authorisation from the Court is necessary.
Paragraph 8c of the KAKuG states that founders of hospitals and clinics are obliged to set up ethics committees to assess clinical tests of medicines and medical products and the application of new medical methods in the hospital or clinic. Assessments must pay particular attention to the people taking part in the research, the relationship between the target and the scientific meaningfulness and between usefulness and risk, the manner in which experimental subjects are selected, the way information in given and consent obtained and the precautions against possible damage to participants.
The legal status of advance directives in Austria
According to § 10 of the Hospital Establishment Law of 1957 (KAKuG), it is obligatory when recording a patients’ case history in hospitals and clinics to document instructions from the patient regarding certain forms of treatment which should not be carried out in the case of future incapacity. These instructions must then be taken into account by doctors in the event of the patient’s future incapacity.
In Austria, it is possible to write an advance directive (sometimes called a “living will”) (“Patientenverfügung”) and/or to appoint a trusted person to act on one’s behalf (“Vorsorgevollmacht”/DPoA). The duties of the trusted person may be limited to financial, administrative and/or care issues, but may also (or alternatively) cover health care decisions.
On 1 July 2006, the 55th Federal Act on Living Wills (the “Patienten-verfügungsgesetz – PatVG”) came into force. This act regulates the requirements and effectiveness of living wills. The law divides living wills into those that are binding and those that are non-binding.
Conditions surrounding the writing, validity and registering of an advance directive
A person making a living will should have the capacity for insight and judgement (§ 3). In a binding living will, any medical treatments that are to be refused must be concretely described or be clear from the overall context of the document. It must be clear that the person making the living will appropriately evaluate the consequences of the living will (§ 4).
Before writing the living will, the person must consult a doctor in order to obtain information about the nature and consequences of the living will for medical treatment. The doctor providing such information must also confirm the person’s capacity for insight and judgement by indicating his/her name and address and signing the document. S/he must also confirm that the person has appropriately evaluated the consequences of the living will and give examples to demonstrate in what way (§ 5).
If the doctor providing information in this context is of the opinion that the patient does not have the necessary insight and judgement to draw up a living will, s/he shall document this, if applicable, in the patient’s medical history (§ 14).
§ 10 states that a living will is invalid if it is not based on a free and well-considered declaration, or if it has been initiated by error, fraud, deception or on physical or mental pressure. In addition, it is considered invalid if its content is legally unacceptable, if the state of medical science has changed with regard to something mentioned in the living will since it was written and if it has been revoked or the patient suggests that it is no longer valid.
According to the law proposal, a relevant advance directive can also be made orally by a hospitalised patient. For non-hospitalised patients who have not personally written or signed their advance directive, it must contain the signature of a doctor who certifies that s/he has provided the person with the relevant information relating to the decisions made by the patient.
The informing and attending doctor must include the living will in the patient’s clinical records. If the living will is drawn up outside the hospital setting, the doctor must include it in the medical history (§ 14).
What an advance directive can cover
The federal act on living wills does not explicitly state what can be included in the living will but it does state that it can contain additional comments such as the designation of a specific confidant, the refusal of contact with a specific person or the obligation to inform a specific person (§ 11).
The living will cannot be used to refuse treatment that has been imposed on a person by specific legal provisions (§ 13).
Obligation to comply with instructions contained in an advance directive
The living will be considered binding if it was drafted in writing, if the date was indicated in the presence of a lawyer, a notary, or a legally trained associate of the patient advocacies, and if the patient was informed about the consequences of the living will as well as about the possibility to revoke it at any time. The person witnessing the dating of the document must also personally sign the document (§ 6).
If the living will does not fulfill the above-mentioned conditions, it is considered as non-binding but must still be taken into account when trying to establish a patient’s will. The closer the living will is to fulfilling the conditions, the more it will be taken into account when trying to establish the patient’s will (§§ 8 and 9).
If emergency treatment is needed and taking time to search for a living will would seriously endanger the life or health of the patient, doctors can take the necessary measures (section 12).
Amending, renewing and cancelling advance directives
A living will is valid for 5 years from the date it was signed unless a shorter period of time was specified. It can be renewed for a further five-year period as long as the formal requirements previously mentioned have again been fulfilled. Every amendment is treated in the same way as a renewal and the expiry date is reset for the entire living will. It does not lose its binding character once the patient is unable to renew it due to incapacity to understand, judge or express him/herself (§ 7).
A DPoA can be revoked at any time even, even after the person who made it has lost capacity, insight or judgement.
Issues surrounding the loss of legal capacity
The 136th Federal Law of 2 February 1983 on Trusteeship/Guardianship for Handicapped Persons (Law on Trusteeship/Guardianship Law) resulted in the repeal of several paragraphs relating to incapacitation in the Order on Incapacitation of 28 June 1916. Due to the change in Guardianship Law effective as from 1 July 2007 (Sachwalterrechts-Änderungsgesetz BGBl 2006/92) guardianships are to be restricted to those cases in which the appointment of a guardian is unavoidable by legislation offering alternatives to guardianship, i.e. agents authority granted to next of kin or durable powers of attorney for legal representation.
This law refers to §268 of the General Civil Code which states that a person who is unable to manage his/her own affairs without risk of personal disadvantage can have a trustee appointed if there is no less restrictive method of protecting his/her interests.
Proxy decision making
The conditions for the appointment of a guardian
People with dementia who need a guardian are now covered by the Law on Trusteeship. According to §268 of the General Civil Code,
"If a person who suffers from a mental illness or who is mentally handicapped is unable to look after some or all of his own affairs without risk of disadvantage to himself, a trustee shall be appointed for this purpose on his own application or by order of the authorities."
A trustee (the term which will be used hereafter for guardian) should not be appointed if the person concerned could be assisted in a way which would be less intrusive or extreme, e.g. by a family member or a private or public institution. One such possibility would be to use a durable power of attorney, provided that the person had sufficiently legal capacity to write a valid durable power of attorney. Nevertheless, the repeal of the Order on Incapacitation in 1984, which meant that people could no longer be declared "legally incompetent", resulted in a huge increase in the number of trustees appointed (Blaha, 1999). Awareness of this problem has been increasing, and new research by appointment of the Ministry of Justice has been carried out.
How guardianship is arranged
The procedure for the appointment of a trustee is described in §§117-131 Außerstreitgesetz.
First, there must be a request for trusteeship. This can be made by the person him/herself or alternatively by anyone who is of the opinion that the person is in need of protection.
Then, if the Court judges that there are reasonable grounds for concluding that such an appointment is necessary, it must contact the person concerned. This person must be informed of the reason and purpose of the procedure and s/he must have the opportunity to express his/her views on the matter. If the person ignores the summons to appear in Court, measures can be taken to bring him/her there although due consideration must be shown. If the person cannot appear in Court as it would be impractical or detrimental to his/her wellbeing, the judge must make a home visit.
If the Court decides to go ahead with the proceedings, a legal advisor is arranged for the person. A temporary trustee is appointed for the duration of the proceedings if the person has no legal representative of his/her own choice. The temporary trustee can be replaced at any time if the person appoints a legal representative of his/her own choice.
The Court then makes the necessary inquiries for a decision to be made on the basis of an oral hearing. The person can be excused from being present at the oral hearing if his/her presence would be impractical or detrimental to his/her well-being. At the oral hearing, people who are close to the person are called in and the circumstances surrounding the request and the person are taken into account. A trustee can only be appointed after at least one, or if appropriate several, experts have been heard and have submitted a report.
If the Court decides not to appoint a trustee, the proceedings must be terminated. If, on the other hand, a decision is made to appoint a trustee, the decision must be accompanied by a statement that a trustee is being appointed for the person in question in accordance with §268 of the General Civil Code. The trustee must be named and the affairs that s/he has to manage must be described on a case by case basis. If appropriate, the extent to which the person concerned is free to make decisions must be stipulated. A statement of costs must also be made. The decision concerning the appointment of a trustee is served in person on the person concerned, the representative and the trustee.
Who can be a guardian
The choice of trustee is based on the nature of the affairs which need managing and the needs of the person for whom the trustee is being appointed. Usually a person is appointed who is on close terms with the ward. Alternatively, a trustee can be appointed from a circle of people designated by a non-profit advocacy organisation. If it is felt that the person's affairs would be best handled by a person with legal knowledge, a lawyer, trainee lawyer or notary can be appointed.
Other appropriate persons (e.g. social workers) may be appointed if neither persons close to the ward nor an advocacy organisation nor an attorney or notary is available. These persons are not allowed to assume more than five guardianships. Attorneys-at-law or notaries may not take on more than 25 guardianships. The Court decides on a case by case basis if those persons are able to act in more than 5 or 25 guardianships.
According to the new law (§ 279 of the General Civil Code), the trustee in question must be able to act independently on behalf of the ward. This means, for example, that no employee of a nursing home where the person concerned lives, or care providers who are directly involved in the patient’s treatment, may function as a trustee.
The Federal Law of Organized Guardians, Patients’ Advocates and Residential Advocacy (BGBl I 2006/92) contains specific rules on the appointment of trustees (and patients' advocates, and residential advocacy) from organisations.
The duties and responsibilities of guardians
As a “legal representative” the powers of the trustee are determined on an individual basis taking into account the extent of the disability, as well as the nature and scale of the affairs to be managed (§268 of the Law on Guardianship). The trustee can be entrusted with the management of the person's individual affairs such as defence against a claim or entering into and handling a legal transaction, or with the management of all the affairs of this person. However, for "strictly personal decisions"such as the right to bodily integrity and the choice of one's place of abode, the trustee can only decide on the person's behalf if the latter is incapable of understanding or making a judgement. If the trustee is not only entrusted with single affairs, s/he must be in touch with him/her at least once a month (this is called “Personensorge” nach §282)
The trustee may be entrusted with the management of a particular range of affairs, the administration of some or all assets or the management of all the affairs of the person. The Court may, however, grant the person under trusteeship the right to make decisions and undertakings which fall under the authority of the trustee, provided that this would not endanger his/her wellbeing. According to §282 of the Law on Trusteeship, "the trustee of a handicapped person must also ensure that required personal care and in particular medical and social care is offered. …and must establish at least monthly contact, if s/he is not only entrusted with single affairs.”
The person under guardianship only loses capacity for matters which have become the responsibility of the trustee. S/he retains legal capacity for all other matters, except legal representation of his/her children. This person also requires the guardian’s consent to marry.
Moreover, even if responsibility for a decision lies with the trustee, s/he must inform the person of any important decisions relating to his/her person or assets. The trustee must give the person sufficient time and opportunity to express his/her views and must take such views into consideration provided that any wish expressed is appropriate. The new law contains actual guidelines or stipulations on how assets should be managed: The guardian is first and foremost responsible for the person’s wellbeing. Primarily, assets should be used to improve the person’s living conditions (§ 281 (3) of the General Civil Code).
Measures to protect the ward from misuse of power
It is the duty of the Court to verify at appropriate intervals whether the wellbeing of the person for whom care has been ordered requires the removal of the trustee(s) or a change in the trusteeship (§278 of the General Civil Code). In addition, the trustee must regularly report to the Court and if applicable, account for the management of the person's income and assets. At least once a year, the trustee must submit a report on the contact s/he has had with the person and that person’s housing situation and living conditions. For financial matters, a financial report must be submitted at least once every three years.
With regard to associations acting as trustees, it is the responsibility of the Federal Minister of Justice to supervise their work. In §5 of the Law of Organized Guardians, Patients Advocates and Residential Advocacy it is stated, that the Federal Minister of Justice must, ensure, in an appropriate manner, if necessary by direct examination, that the associations are carrying out their duties in the context of association trusteeship properly and in accordance with the law.
Compensation and liability of guardians
According to §276 of the General Civil Code, guardians can apply to the court for remuneration and to have their expenses reimbursed. Usually, they receive 5% of the ward’s net income excluding certain benefits and allowances that the latter may receive. An additional 2% of the ward’s assets exceeding EUR 10,000 may also be granted.
If the trustee does not act on behalf of the ward, s/he is liable for all resulting damage (§267 of the General Civil Code). Lawyers, public notaries or trustees from a non-governmental organisation must fulfil higher standards than trustees close to the ward.
Duration of the guardianship measure
The trustee can be relieved of his/her duties if at any time they are no longer needed. In addition, it is the duty of the Court to verify "at appropriate intervals" whether the wellbeing of the person for whom care has been arranged requires the removal or change of trustee (§283 of the General Civil Code).
The right to appeal
The ward has full legal capacity concerning the proceedings of guardianship. S/he can appeal to a Higher Court, file an application, apply or appear directly in Court.
Agent’s authority granted to next of kin (AAGNK)
The conditions for the appointment of an AAGNK
As stated in the previous section, it is now possible to grant agent’s authority to a next of kin (Vertretungsbefugnis nächster Angehöriger) if guardianship is not necessary but due to mental illness or disability, the person is unable to manage his/her legal affairs or personal matters. However, it is only possible to grant such authority to a next of kin if the person does not already have a trustee and has not already granted a durable power of attorney for legal representation (Vorsorgevollmacht).
How AAGNK is arranged
To obtain an agent’s authority, a person must submit a medical certificate in which it is stated that the person concerned lacks legal capacity, submit it to a public notary along with proof that s/he is the next of kin. This is then entered into the Central Austrian Register of Representation (ÖZVV). The notary gives the newly appointed agent a certificate for identification purposes.
Who can be an agent
Next of kin includes parents, children who are of age and spouses (or unmarried partners who have lived together for at least 3 years). These people are not placed in any order of priority.
The duties and responsibilities of agents
Once appointed, they are responsible for handling the person’s current income (there is a limit of € 901 per month, and there are different interpretations of this limit.) and covering his/her needs for care. This might, for example, include making claims for pensions and social assistance and consenting to treatment provided that it would not have a lasting or serious impact on the person’s health and that the person lacks the insight and judgement to make the decision him/herself.
Measures to protect the ward from misuse of power
If the person concerned is considered to be in danger, this must be reported to the Court, which would then appoint a trustee who is entitled to take legal action.
Compensation and liability of agents
The agents are not entitled to remuneration but are liable for damages according to the rules laid down for guardians.
Duration of the AAGNK
There is no regulation specifically covering the duration of the AAGNK (i.e. its duration is not regulated by law). The AAGNK could be terminated at the objection of the person concerned, by appointment of a trustee or on recovery of the person concerned (e.g. the person concerned recovers after a stroke).
The right to appeal
An agent cannot be registered if the person concerned objects to his/her appointment or already has a guardian or durable power of attorney for legal representation. The person can even object after s/he has lost legal capacity, insight or judgement with the result that the agent’s authority would be terminated or not become effective.
Durable powers of attorney
The conditions for the appointment of a durable power of attorney for legal representation
The changes in the guardianship law, which came into force on 1 July 2007, also cover durable powers of attorney for legal representation (referred to hereafter as DPoA). The DPoA only becomes effective when the person granting it loses legal capacity, insight and judgement or the ability to express him/herself (as attested by a medical certificate)
How durable powers of attorney are arranged
There are two ways to make a DPoA:
It must be signed manu propria (with one’s own hand) by the grantor who then confirms in front of three unbiased witnesses with full legal capacity that it fully conforms to his/her intentions.
It is not signed manu propria by the grantor but is confirmed by a public notary.
If, however, it contains wishes relating to certain issues (namely consent to serious medical treatment with lasting effect, decisions relating to permanent relocation and/or financial matters which are not part of day-to-day business), it must be drawn up before a lawyer, public notary or court. If it was not drawn up before a lawyer, public notary or court, the court would have to appoint a guardian for decisions about such issues.
The grantor must be informed of the legal consequences of making such a document and of the option to revoke it at any time.
This is then entered into the Central Austrian Register of Representation (ÖZVV) by a lawyer or notary who must inform both the granter and the holder of the DPoA of the registration of the document and make sure that each has a copy. Only a notary can register the entry into effect of the DPoA. When this is done, s/he must also provide the holder of the DPoA with a DPoA registration certificate.
Durable power of attorney for health care purposes
As mentioned above, a DPoA concerning consent to serious medical treatment with a long lasting effect or refusing treatment, which is vital, must be drawn up before a lawyer, a public notary or a court.
It is also possible to combine a DPoA with a living will:
A living will concern the advance refusal of medical treatment at a time when the grantor no longer has insight or judgement or cannot express him/herself. It can be considered relevant or binding. For it to be binding, it must contain specific details of the treatment to be refused and must have been drawn up before a lawyer, notary or patient advocacy organisation. In addition, it must be renewed after five years.
Who can be appointed attorney
According to § 284f – 284h of the General Civil Code, anyone can grant a DPoA to a person they trust.
The duties and responsibilities of the attorney
The wishes and obligations the grantor has stated in the DPoA must be fulfilled. If the grantor has not stated something specific, the general welfare of the person represented has to be promoted.
Measure to protect the person from misuse of power
The grantor can revoke the DPoA at any time. If the grantor is incapable to act for him/herself, anybody can inform the court. The court may appoint a guardian, who could, with special permission from the court, revoke the DPoA on behalf of the grantor.
Compensation and liability of the attorney
Compensation and/or reimbursement of expenses should be handled as stipulated in the DPoA. There is liability of damage according to the rules laid down for trustees.
Duration and right to appeal
The person who made the DPoA can revoke it at any time even, even after s/he has lost capacity, insight or judgement.
Capacity in specific domains
Marriage and divorce
Article II of the Law on Trusteeship which amends the marriage law, states that people with restricted legal competence shall be considered as minors over seven years old and persons for whom a trustee has been appointed under §268 of the General Civil Code. Under the Marriage Law, consent of the trustee (if one has been appointed) is necessary or if such consent is refused, the court of trusteeship can give it instead.
The person with restricted legal competence, however, must be able to understand what duties and responsibilities marriage implies (i.e. have the “capacity to marry”). If not, the marriage could be declared null and void.
If a person with dementia wants to divorce and his/her legal competence has not been restricted, s/he can file for divorce. If a trustee has been appointed, and the person concerned wanted to divorce before s/he became ill, the former is entrusted to file for divorce on behalf of the latter.
If his/her partner files for divorce, and the break-up is not in the ward’s interest, the marriage can be dissolved by the court 6 years after the end of marital cohabitation. According to §51 of the Marriage Law, severe mental illness can be a reason for divorce if recovery is not expected.
Consensual divorce, in accordance with §55a of the Marriage Law, is based on a strictly personal decision. Surrogate decision making is therefore not permitted.
A person for whom a trustee has been appointed does not lose the right to vote (or to be elected).
Where there is a trustee, wills can be made in a particular way. The person who is making the will must make a statement of will before the court or before the notary, if the court has declared it to be a part of the decision related to the appointment of a trustee.
Once a person has had a trustee appointed in accordance with §268 of the General Civil Code, s/he can no longer make legal decisions or transactions for any actions for which the trustee has been entrusted without the express or tacit consent of the trustee. There are exceptions to this rule, which are determined by the Court. If the person does make a legal transaction which is not one of these exceptions but is of minor significance concerning daily life, it can still be considered legal provided that the person has fulfilled his/her duties in relation to it.
According to § 11 of the Penal Code:
“A person who at the time of the action, on account of mental illness, of mental deficiency, of far-reaching disturbance of consciousness or of some other mental disturbance equivalent to one of these conditions, is incapable of understanding the wrongfulness of his action or of acting in accordance with this understanding, shall not be acting culpably.”
Last Updated: Friday 10 February 2017