Page - 32 - in Austrian Law Journal, Volume 1/2015

ISSN: 2409-6911 (CC-BY) 3.0 license www.austrian-law-journal.at Fundstelle: Ganner, Enduring Power of Attorney (EPoA) – comparison between Austrian and German Law, ALJ 1/2015, 32–41 (http://alj.uni-graz.at/index.php/alj/article/view/35). Enduring Power of Attorney (EPoA) – comparison between Austrian and German Law Michael Ganner*, University of Innsbruck Abstract: With the establishment of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) the treatment of people with disabilities is changing from a protective perspective to a rights-based approach. The Enduring Power of Attorney (EPoA) is an important instrument, which helps with the implementation of the CRPD into national law. As an instru- ment of self-determined substituted decision-making it is recognised as the best practice model to safeguard the autonomy of people suffering the deprivations of age and other disabilities. This article touches briefly on general supported and substituted decision-making instruments and then goes on to examine the differences and similarities, advantages and disadvantages be- tween Austrian and German laws concerning EPoAs. Keywords: Enduring Power of Attorney; United Nations Convention on the Rights of Persons with Disabilities; Guardianship; Living Will; Decision Making. I. Overview With the establishment of the United Nations Convention on the Rights of Persons with Disabili- ties (CRPD)1 a paradigm shift is taking place: The treatment of people with disabilities is changing from a protective perspective to a rights-based approach.2 Supported decision-making should replace substituted decision-making, however “thus far there has been a general failure to un- derstand that the human rights-based model of disability implies this shift from a substituted to a supported decision-making paradigm.”3 Nevertheless substituted decision-making is still both necessary and in accordance with the CRPD, but only as ultima ratio.4 * Michael Ganner is professor at the Institute of Civil Law at the University of Innsbruck. 1 The CRPD was ratified by Austria in 2008 without reservations and without interpretative explanations, but under the condition that it was not immediately applicable, but had to be transformed into national Austrian law (Erfüllungsvorbehalt according to Art 50 clause 2 lit 4 B-VG); Ganner/Barth, Die Auswirkungen der UN-Behinderten- rechtskonvention auf das österreichische Sachwalterrecht, BtPrax 2010, 204 (204 et seq). 2 Lachwitz, Übereinkommen der Vereinten Nationen über die Rechte von Menschen mit Behinderung, BtPrax 2008, 143 (143 et seqq). 3 Draft General comment on Article 12 of the Convention-Equal Recognition before the Law (13. 9. 2013) Nr 3. 4 Lipp, Guardianship and Autonomy: Foes or Friends? in Arai/Becker/Lipp (eds), Adult Guardianship Law for the 21st Century – Proceedings of the First World Congress on Adult Guardianship Law 2010 in Yokohama, Japan (2013) 103 (108). Some countries like France, Norway, Australia and Canada have declared explicitly within their inter- pretative explanations that they will not abstain from substituted decision-making instruments, available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en (31. 1. 2015).