OGH: Duty of banks to provide information to guardianship court

Sept 22, 2021 Benn-Ibler Rechtsanwälte

Upon request, the bank must also provide the guardianship court with information on whether there have been any account movements since the account was opened or what the current account balance is. The bank's obligation to provide information to the guardianship court goes beyond the obligation to provide information to the person concerned as a customer or the adult representative.

In the case at hand, the court of first instance ordered several banks to disclose the accounts, savings books, securities, building society contracts and other assets that the person concerned had with them. This order is based on Section 133 (1) and (4) of the Non-Contentious Proceedings Act (Außerstreitgesetz,AußStrG) and Section 38 (2) (4) of the Banking Act (Bankwesengesetz, BWG). According to Sec. 133 of the AußStrG, the right of the guardianship court to obtain information includes all information necessary for the fulfilment of its aforementioned tasks.

The bank, the appellant, stated that the person concerned had been identified to three small-value savings books, but because of bank secrecy, further information could only be given after confirmation of the person concerned's material entitlement.

According to the Supreme Court (OGH), the adult representative and the guardianship court have all external data of the business relationship at their disposal. Moreover, banking secrecy does not preclude the bank's obligation to provide information in adult protection proceedings, at least about "substantive" data, since the customer could also not be denied this information by invoking banking secrecy. The presentation of the savings certificate is not necessary for this information.

In addition, the court has a right to information that is independent of the adult representative, since the obligation to take action by the court according to Sec. 133 of the AußStrG only applies if and to the extent that the adult representative is not in a position to do so. The court is thus to have more extensive investigative possibilities when providing assistance. This means that the bank must also provide the guardianship court, upon request, with information on whether there have been any account movements since the account was opened or what the current account balance is.

OGH 8 Ob 120/20k (25.06.2021)