LEXIKON

In its decision of April 22, 2026, 6 Ob 77/25d, (https://www.ris.bka.gv.at/Jus/), the Supreme Court had to determine whether a health care proxy could validly exercise the voting rights of the sole shareholder at a general meeting of a limited liability company (GmbH) based on a health care power of attorney.

Pursuant to Section 1034(1)(2) of the Austrian Civil Code (ABGB), a durable power of attorney holder is deemed a legal representative once the durable power of attorney takes effect. According to the Supreme Court, the holder is thus covered by the term “legal representative” as defined in Section 39(3) of the Limited Liability Companies Act (GmbHG) and therefore—unlike an ordinary agent—does not require a separate written proxy for voting rights.

The decisive factor is the specific scope of the power of attorney for estate planning. In this case, a sole shareholder and sole managing director granted his wife a “general and unrestricted power of attorney regarding the management of the company.” The Supreme Court interpreted this intent to mean that it encompasses not only the management duties themselves but also the ability to influence management through the exercise of shareholder rights, in particular the selection of managing directors. The appointment of a new managing director by the agent under the power of attorney for health care was therefore valid.