In the Supreme Court’s decision on 4 Ob 46/19x, the court-appointed adult representative applied to the court of guardianship to approve the purchase agreement concluded by him for the sale of the property of the person concerned and the associated permanent change of his place of residence to a rented apartment. The Supreme Court confirmed the decision of the Court of Appeal to reject the applications of the court-appointed adult representative.
§ Section 257 ABGB regulates the change of residence of a person concerned. According to Section 257 ABGB, a person of legal age who has sufficient decision-making capacity can only decide on a change of residence themselves. This also applies if they are unable to conclude or terminate the contracts to implement this decision themselves. In this case, the legal adult representative must – within the scope of the available possibilities – carry out the necessary legal acts.
If the person is not capable of making decisions, the legal adult representative must decide on the change of place of residence if this falls within their area of responsibility and is necessary to safeguard the welfare of the person concerned. This generally requires a serious and significant risk to the life or health of the person concerned or to other legal interests worthy of protection.
Furthermore, this decision by the court-appointed adult representative requires court approval (this only applies to the healthcare proxy if the place of residence is to be moved abroad). The permissibility of the change of residence cannot be assessed in the abstract, but only on the basis of the specific circumstances. Court approval can therefore only be considered in relation to a specific new place of residence, which must be determined. In the proceedings concerning the approval, the court must obtain a personal impression of the person concerned (§ 131 Para. 2 of the Non-Contentious Proceedings Act). If the person concerned indicates that they do not wish to change their place of residence, the court must instruct the Adult Protection Association to clarify this.
The purchase contract for the sale of the property of the person concerned is also subject to approval because, from the point of view of the person concerned, this act of representation is not part of the ordinary business operations of asset management (Section 258 (4) in conjunction with Section 167 (3) ABGB).
If, in the event of a permanent change in the place of residence of the person concerned, it is necessary both to legally vacate the previous household and to legally establish a new household, a legal transaction concerning the sale of a property that serves to satisfy the current housing needs of the person concerned may not be approved before the conclusion of a contract (subject to a condition precedent) (or before an unalterable draft contract combined with a commitment to conclude) concerning the establishment of the new household.
Moreover, properties (e.g. the house previously used as a residence) may only be acquired against the will of the person concerned. in an emergency or for the obvious benefit of the person concerned. An emergency exists if the disposal is unavoidable, e.g. to avert a loss-making execution or insolvency.
Sources:
Supreme Court 25.04.2019, 4 Ob 46/19x
Kolmasch, Adult representation - approval requirements for change of residence, Zak 2019/427
Hinteregger, adult representative disposition, elected and legal adult representation, EF-Z 2018/117