Yes, this Convention entered into force in Austria on 1st April 2011.

1.1 Which law applies to questions of custody and legal representation of a minor? What criteria are used to determine the applicable law?

According to Article 15 of the Hague Convention of 19 October 1996, the authorities of the contracting states apply their own law when exercising their jurisdiction (lex fori).

The attribution or extinction of parental responsibility by operation of law, without the intervention of a judicial or administrative authority, is governed by the law of the state of the child’s habitual residence (Art. 16, par. 1).

The attribution or extinction of parental responsibility by an agreement or a unilateral act, without intervention of a judicial or administrative authority, is governed by the law of the state of the child’s habitual residence at the time when the agreement or unilateral act takes effect (Art. 16, par. 2).

The exercise of parental responsibility is also governed by the law of the state of the child’s habitual residence (Art. 17).

1.2 Which authority has international and territorial jurisdiction concerning questions of custody?

If the minor has his/her habitual residence in a member state of the EU, Regulation No 2201/2003 (“Brussels IIa”) is applicable, overriding the Convention on the protection of children of 19 October 1996 (Art. 61 Reg. No 2201/2003).

International jurisdiction is thus up to the state in which the child habitually resides at the time the court is seised (Art. 8 of the regulation).

If neither Regulation Brussels IIa nor the Hague Convention applies, Austrian courts have jurisdiction if the minor is an Austrian national, or if he/she has his/her habitual residence in Austria, or if he/she has property in Austria and the matter involves measures concerning such property (Section 110 of the Austrian law on civil procedure and judicial organisation).

Territorial jurisdiction is up to the court in the circuit in which the child has its habitual residence (Section 109 of the Austrian law on civil procedure and judicial organisation).

1.3 Which authority has international and territorial jurisdiction concerning questions of representation?

See the answer to question 1.2.

Every person having reached 18 years of age is deemed to be an adult. A distinction is made between three groups of minors:

• Children (under 7 years of age): they have no legal capacity. The only exception is the case in which the child enters into a transaction of minor importance in daily life relevant to their age; these are validated with retroactive effect when the child carries out the obligations incumbent upon it (Section 170(3) of the Austrian Civil Code; ABGB).
• Minors between the ages of 7 and 14 years: they enjoy limited legal capacity and can enter into legal transactions from which they only derive a legal advantage (such as a gift, for example, which does not give rise to any obligation). If the minor wishes to accept obligations, the consent of the legal representative will be needed and, in important cases, even that of the court.
• Minors between the ages of 14 and 18 years: they can enter into contractual agreements to provide services (with the exception of apprenticeship or training contracts) (Section 171 ABGB) and dispose of their personal income and of objects freely made available to them, to the extent that this does not compromise the satisfaction of their vital needs (Section 170(2) ABGB).

2.1 Is it possible for the legal capacity of a minor to be extended in some cases (e.g. right to get married, right to make last will)?

Yes.

2.1.1 Is a decision required to extend the legal capacity? If so, who is competent to decide on the extension of the legal capacity?

See under 2.1.2.

2.1.2 List the transactions that the minor may enter into alone (e.g. the right to make a last will) with reference whether approval of some other person or authority is necessary for such transactions.

A person who has reached 16 years of age can obtain the court’s consent to enter into a marriage provided the future spouse has reached the age of majority and he/she seems mature enough to get married  (Section 1(2), of the law on marriage). Any minor, and any person with only limited legal capacity, has to obtain the consent of the legal representative and of the person in charge of his/her care and education to enter into a marriage. In case of refusal, the court has to consent at the request of the person concerned, if the refusal is not justified.

It is possible for minors between 14 and 18 years of age to make an oral will before the court or a notary (Section 569 ABGB).

Children under 7 years of age can only enter into transactions of minor importance in daily life relevant to their age; these are validated with retroactive effect when they carry out the obligations incumbent upon them (Section 170(3), ABGB).

Minors between 7 and 14 years of age can enter into legal transactions from which they only derive an advantage (such as gifts, for example, which do not give rise to any obligation).

Minors between 14 and 18 years of age can undertake to provide services (with the exception of apprenticeship or training contracts) (Section 171 ABGB) and dispose of their incomes and of objects freely made available to them, provided that this does not compromise the satisfaction of their vital needs (Section 170(2), ABGB).

A child, with a capacity for discernment and the ability to form a judgment, has to agree to medical treatments; in case of doubt, the existence of such capacity for discernment and ability to form a judgment is presumed in minors between 14 and 18 years of age. In the absence of the necessary capacity for discernment and the ability to form a judgment, the consent is needed of the person in charge of legal representation in matters of care and education (Section 173 ABGB).

Paternity has to be recognised in person (Section 145 ABGB). For this reason, it is not permissible for a parent to act in the name of a minor, even if he consents.

If the child’s parents are married, parental authority is held by both parents (Section 177(1), ABGB). If the parents are not married, parental authority is granted in principle to the mother; however, the father and mother can, by joint declaration before the civil registrar, decide that parental authority be granted to them jointly (Section 177(2),  ABGB). If the parents live separately and parental authority is held jointly, they have to decide whom of the two shall mainly take care of the child (Section 177(4), ABGB).

3.1 What is the scope of the right of custody?

Parental authority includes care and education of the child, legal representation and administration of his/her property (Section 158(1), ABGB).

3.2 Who will appoint the custodian(s), if either one or both parents/custodians are not able to act anymore (e.g. in case of death or loss of legal capacity)?

3.2.1 On who’s proposal and when the decision on appointment of custody is made?

If a parent, who exercised parental authority jointly with the other parent, dies; or, if his or her place of residence has been unknown for at least six months; or, if it is impossible or very difficult to establish contact with him or her; or, if parental authority has been totally or partially withdrawn, parental authority is exclusively exercised by the other parent.

If the parent holding sole parental authority encounters the same fate, the court has to decide, in the interest of the child, whether parental authority is to be held by the other parent or by (a) (and, if so, which) grandparent(s) or adoptive parent(s).

If both parents are concerned, the court has to decide, in the interest of the child, whether (a) (and, if so, which) grandparent(s), or adoptive parent(s), is to hold parental authority (Section 178 ABGB).

If parental authority has neither been granted to the parents nor to the grandparents, nor to the adoptive parents, or if it cannot be granted to them, the court has to appoint another person able to exercise parental authority, taking into account the child’s interest and the parents’ wishes (Sections 204 and 205 ABGB).

3.2.2 Is the competent authority free in its choice of a new custodian?

The court has to take the interest of the child into account. It has to take into account the child’s wishes and those of the parents, to the extent that they serve the child’s interest. Parental authority cannot be transferred to persons who do not have full legal capacity and who are not presumed to exercise parental authority in the interest of the child (Section 205 ABGB).

3.2.3 Can the right of custody belong to several persons? Is it possible to have different custodians for different areas (care of property/care of the child itself)?

Yes, this is possible. However, this presupposes that parental authority has been granted fully to the parent in whose home the child is mainly cared for (Section 177(4), ABGB).

3.3 How and by whom will the right of cutody be determined if the parents are arguing about it? Is there a difference between married and unmarried couples?

If the parents are married to one another, parental authority is granted to both parents. If not, it is solely granted to the mother (Section 177 ABGB). If a parent requests to be the sole holder of parental authority, or to participate in parental authority, the court will decide (Section 180 ABGB). The parent who does not hold parental authority has a right to contact with the child. This right to contact has in principle to be jointly agreed upon by the parents. Otherwise, the arrangements are laid down by the court upon request of the child or one of the parents (Section 187(1), ABGB).

3.4 May the right of custody be transferred to another person by means of a power of attorney?

Austrian law does not provide for the transfer of parental authority to a third party by way of power of attorney.

Legal representation is one of the attributes of parental authority. If parental authority has been granted to both parents, each is entitled and obliged to represent the child alone (Section 167(1), ABGB). In civil proceedings, only one parent holding parental authority has the right to represent the child (Section 169 ABGB).

4.1 Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity)?

4.1.1 On who’s proposal and when the decision on appointment of a legal representative is made?

4.1.2 Is the competent authority free in its choice of a new legal representative

4.1.3 Can the right of legal representation belong to several persons? Is it possible to have different representatives for different areas?

For the answers to 4.1.1 to 4.2.3: legal representation is one of the attributes of parental authority; we refer to the answers under 3 and 3.2.

4.2 Are there any restrictions / extensions for the legal representative(s)?

4.2.1 Are there some areas in which the legal representative is not competent to act (e.g. drafting of a last will, entering into marriage)?

The legal representative can neither enter into a marriage, nor draw up a last will on behalf of the minor.

Any child, with a capacity for discernment and the ability to form a judgment, has to consent to medical treatments; in case of doubt, the existence of such capacity for discernment and the ability to form a judgment is presumed in minors between 14 and 18 years of age (Section 173 ABGB). Neither the minor, nor the parents, has the right to consent to a medical procedure the aim of which is to sterilise the minor (Section 163 ABGB).

4.2.2 Is there a connection between the right of custody and the representation rights (e.g. power of representation exists only in the areas of custody)? Would it be possible for both parents to have custody but for only one to have the right of representation in transactions with some property of a minor?

In principle, the right to represent a minor is connected to parental authority. In civil proceedings, only one parent holding parental authority has the right to represent the child (Section 169 ABGB).

If the minor receives property, it is possible to exclude a parent from the administration of this property (Section 166 ABGB).

4.2.3 Is it required that all legal representatives conclude transactions on behalf of the minor jointly (e.g. both parents) or may the transaction be concluded by one legal representative of the minor alone (e.g. one parent)?

4.2.3.1 Name the legal transactions (e.g. waiver of succession) the legal representative may perform on behalf of the minor if he/she is acting alone (e.g. one parent).

As a general rule, each parent holding parental authority can represent the minor alone (Section 167 ABGB), with the exception of certain specific cases laid down by the law and in which the consent of the other spouse (see 4.2.3.2), or that of the court (see 4.2.4.2), is needed. In civil proceedings, only one parent holding parental authority has the right to represent the child (Section 169 ABGB).
4.2.3.2 Name the legal transactions (e.g. waiver of succession) into which the legal representatives may enter on behalf of the minor only jointly (e.g. both parents).

In the following cases, the consent of the other parent holding parental authority is needed: changing the first or family name; joining or leaving a church or religious community; acquiring or renouncing a nationality; prematurely terminating an apprenticeship, training or employment contract and recognising paternity of an illegitimate child (Section 167(2), ABGB).
4.2.3.3 Would there be any difference on the requirement of joint representation in case the parents have never been married?

If the parents were never married, parental authority and legal representation are attributed to the mother.

4.2.4 Other restrictions for legal representatives:

4.2.4.1 Is it necessary that the transaction to be approved also by some other person or authority (e.g. parent, court or local government)? What are the formal requirements on the form of the approval?

The other parent’s consent, as well as the court’s consent (Section 167(3), ABGB), is required for a number of property management matters, which are not part of normal economic life.

4.2.4.2 Name the transactions that persons legally representing the minor may enter into only with the consent of a court or some other authority or person appointed by law.

The following transactions are subject to the court’s approval:  the sale of real estate or any transaction burdening a real estate asset; the constitution, acquisition, transformation, sale, dissolution of a company; the waiver of a succession or unconditional acceptance of a succession; the acceptance of a gift linked to obligations or waiver of an offer of a gift; the bringing of legal action (Section 167(3), ABGB).

4.2.4.3 In case of a mandatory approval of the transaction by another person (e.g. the other parent) or authority (e.g. court) is there any difference whether the approval is given before or after the transaction? What are the legal consequences for the transaction if the approval required by law is denied?

Measures taken in the framework of legal representation, without the required approval of the other parent exercising parental authority or the court, only bind the child once it becomes an adult if the child declares in writing that it recognises these obligations as being valid (Section 168 ABGB).

4.2.4.4 Are there certain cases in which the legal representatives shall not act (e.g. contract on behalf of the minor concluded with parent or family member)?

In case of conflicts of interests, the court has to appoint a “curator” (Kollisionskurator), an intermediary in charge of defending the minor’s interests (Section 271 and Section 272 ABGB).

4.3 Are there any other restrictions related to the rights of a minor (e.g. the right of succession) for the persons who have the right of custody or the right of legal representation of a minor in addition to the restrictions specified above?

If the minor receives property, it is possible to exclude a parent from the administration of such property (Section 166 ABGB).

5.1 Does the law provide some kind of document, that gives evidence of the right of custody and/or representation?

During marriage, both parents have the right to exercise parental authority and to represent the legitimate child. In such cases, the marriage certificate is evidence.

As regards children born out of wedlock, the exclusive right to parental authority and representation is in principle given to the child’s mother. No specific evidence needs to be produced. If the father has also been granted parental authority with a view to it being exercised jointly, he has to produce the court decision as to parental authority, indicating the date on which the judgment became final. The procedure is identical for children from a marriage that has ended in divorce.

Any other parties holding parental authority have to produce the relevant court decision, indicating the date on which the judgment became final.

5.2 Is there any other kind of document, that proves the right of custody and/or representation?

See under 5.1.

6.1 What are the requirements for the formal validity of such a consent/permission/authorisation?

Written consent given by a legal representative is considered to be sufficient.

Part 1: Protective measures for adults with diminished capacity

By the adoption of the Second Protection of Adults Law (2. Erwachsenenschutz-Gesetz – 2. ErwSchG) in 2017, Austria has adopted one of the most modern Protection of Adults laws in Europe. This law entered into force on 1 July 2018. It has extensively modernised the guardianship system for adults with incapacity. This law is centred on autonomy, self-determination and guiding the decision-making of those concerned.

The declared aim of the Austrian law is to maintain and recognise the autonomy of every individual for as long as possible, and to support those individuals in the management of their affairs, rather than making decisions over their heads.

The Austrian legal framework for the protection of vulnerable adults offers a scheme of 4 pillars for representing adults requiring assistance, each offering different powers to ensure greater self-determination by the individual concerned:

• The enduring power of attorney;
• Elective representation;
• Statutory representation;
• Court-appointed representation

Part 2: Possibility to anticipate a future loss of capacity

There are two possibilities to anticipate a future loss of capacity, namely by way of an enduring power of attorney or elective representation.

Concerning the enduring power of attorney, Austrian law does not limit the scope of the powers that an attorney can exercise, but a power of attorney of this kind cannot take effect until the donor, i.e. the individual concerned, is no longer able to make their own decisions and the power of attorney has been recorded in the Central Austrian Representation Register (Österreichisches Zentrales Vertretungsregister, ÖZVV) which is operated by the Austrian Chamber of Civil Law Notaries. Supervision by the courts is essentially limited to approving decisions when the attorney and the donor are in disagreement regarding medical treatment. Enduring powers of attorney remain in force indefinitely.

Elective representation differs from the enduring power of attorney in that a person can choose a representative even if they no longer have full legal capacity. However, they must be able to understand the consequences of appointing a representative, at least in broad terms, and to act accordingly. This scheme requires entry in the ÖZVV register and is subject to supervision by the courts. As the adoption of this scheme is based on a decision taken by the individual represented – even if their decision-making capacity is already impaired to some extent – it is valid indefinitely too

Advance directives on medical treatment (“Patientenverfügung”) are used to provide instructions in the event that a person is no longer able to express his or her willingness to accept or refuse medical treatment, for example as a result of an accident or illness. The measures provided for in the advance directive cover only the doctor–patient relationship relating to the respect of the patient’s will, in a particular disease situation, with regard to the non-application of certain medical life-prolonging measures which will no longer be implemented.