Page - 34 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 Enduring Power of Attorney (EPoA) 34 A Living Will enables people to freely make informed decisions on a certain medical treatment in advance. If a Living Will exists, it takes priority over an EPoA and is binding for an attorney. In Germany, a Living Will is regulated in §§ 1901a et seq BGB, in Austria a Living Will is regulated by the Patientenverfügungsgesetz. Austrian law provides two types of Living Wills:10 - the “Binding Living Will” (Verbindliche Patientenverfügung) with a lot of formal require- ments11 but recognised as an actual will of the patient, which the physician is bound to, and - the “Relevant Living Will” (Beachtliche Patientenverfügung), which includes information giv- en by the patient (written, oral or conduct implying an intent) in advance concerning his or her medical treatment; the Living Will is “relevant” which means that a substitute (at- torney or guardian) has to decide on behalf of the presumed will of the patient according to this Relevant Living Will. In Germany, a Patientenverfügung (Living Will) is any written document containing an individual’s decisions in advance about their consent to or the refusal of a medical treatment. If the de- scribed situation in the Living Will corresponds to the real situation, it has to be recognised as the actual will of the patient.12 Notably in this case – and this is different from the Austrian system – an attorney or a custodian is necessary to enforce this will of the patient.13 So if the requirements in form and content are fulfilled there is no room left for a decision by another person. III. Substitution by Family Members In addition to the Enduring Power of Attorney the Substitution by Family Members is another alternative to guardianship provided under Austrian law.14 The implementation of this instru- ment was also discussed in Germany but was dismissed because of the danger of abuse. In Aus- tria, there is no evidence of abuse at the moment. On the one hand this does not categorically mean that there is none but on the other hand abuse may also exist without the instrument of the ex-lege Substitution by Family Members. The question, which cannot be answered here is whether or not the Substitution by Family Members facilitates abuse more readily than other instruments. At the moment, the adoption of the Substitution by Family Members is being discussed again in Germany. But the EPoA, according to German law, already covers some parts of the Austrian 10 König/Pesendorfer, Patientenverfügung, in Barth/Ganner (eds), Handbuch des Sachwalterrechts2 (2010) 379 (379 et seqq). 11 Duty to medical and juridical advice, exact description of medical treatment which is refused and has to be renewed every five years. 12 Warmuth in Sonnenfeld (ed), Die Patientenverfügung – Gesetzliche Neuregelung durch das 3. BtÄndG (2010) 69. 13 So if no EPoA exists a custodian has to be appointed by court. The physician has to decide about the indication of a medical treatment and the custodian, if this correlates with the (presumed) will of the patient. If custodian and physician therefore do not reach an agreement, the custodian has to decide according to the (presumed) will of the patient which needs an additional approval by court (§§ 1901b and 1904 BGB); Jurgeleit (ed), Be- treuungsrecht. Handkommentar3 (2013) § 1901a BGB Rn 3 f, § 1901b BGB Rn 9 et seqq and § 1904 BGB Rn 9 et seqq. 14 Barth/Kellner, Die Vertretungsbefugnis nächster Angehöriger, in Barth/Ganner (eds), Handbuch des Sachwalter- rechts2 (2010) 461 (461 et seqq); Schauer, Vorsorgevollmacht und gesetzliche Angehörigenvertretung nach dem SWRÄG 2006, iFamZ 2006, 148 (151 et seqq).