Page - 33 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 Michael Ganner 33 Our legal systems traditionally divide people into two broad groups. On the one hand there are those who are able to take care of themselves, who may decide about their own issues, even if they appear risky and irrational, but who also have to bear the consequences of their decisions. On the other hand there are those who need protection by law and the community and who are therefore not responsible for their decisions and sometimes not even for their acts. But as we have seen throughout history, this protection-based approach often leads to paternalism and restrictions of individual self-fulfilment. The law in books may be fine and mainly in accordance with the CRPD, but there is emerging evidence that the law in action differs significantly from the provisions of the CRPD. This means that, in reality, substituted decision-making still prevails in many cases and situations where supported decision-making could be more frequently used.5 The Enduring Power of Attorney (EPoA) is often meant to be the best instrument to guarantee the autonomy of people and it is according to the prevailing opinion within the community investigat- ing and working on the implementation of the CRPD the main legal alternative to guardianship at the moment.6 But like guardianship it remains a legal instrument for substituted rather than supported decision-making. Guardianship is the traditional instrument to protect people with mental disabilities from harm- ing themselves, be it personally (medical treatment) or economically (unfavourable contracts). Over the last three decades guardianship has developed significantly and now provides numer- ous measures to enhance the autonomy of persons with mental disabilities (e.g. duty to detect and – with regard to his or her best interest – comply with the wishes of the person). Guardian- ship or custodianship (in Germany) should only be considered as an ultima ratio. It is subsidiary to all other instruments that are suitable to protect the adult person from any harm resulting from her/his mental or physical condition.7 Therefore a guardian or custodian must not be ap- pointed if someone else can effectively take care of the individual’s important affairs (such as through as EPoA) (§ 268 para. 2 ABGB8 and § 1896 para. 2 BGB9). II. Living Will A central principle of health care is the patient’s free and informed consent. It is safeguarded by different legal instruments on the international level, such as the European Convention on Hu- man Rights, the Charter of Fundamental Rights of the European Union, the European Convention on Bioethics (which Austria did not attend), the CRPD, as well as on the national level (ABGB, BGB, StGB, in particular § 110 öStGB – Eigenmächtige Heilbehandlung). 5 Müller, Entwicklungsbedarf des Sachwalterrechts aufgrund der UN-Behindertenrechtskonvention, iFamZ 2013, 241 (243). 6 Lipp/Bagniewski/Dankert/Newell, Representation Agreement in British Colombia (Kanada) – ein Modell für Deutsch- land? BtPrax 2013, 217; Löhnig/Schwab/Henrich/Gottwald/Kroppenberger (eds), Vorsorgevollmacht und Erwachsenen- schutz in Europa (2011). 7 Such instruments are a Living Will, a Power of Attorney, Substitution by Family Members, other substitutions by law (e.g. concerning the deprivation of liberty; Patientenanwaltschaft and Bewohnervertretung in Austria) as well as social and psychological support of any kind. 8 Barth/Ganner, Grundlagen des materiellen Sachwalterrechts, in Barth/Ganner (eds), Handbuch des Sachwalter- rechts2 (2010) 33 (50 et seqq with further references). 9 Jurgeleit in Jurgeleit (ed), Betreuungsrecht. Handkommentar3 (2013) Einleitung Rn 7 und § 1896 BGB Rn 1, 2, 111.