Page - 35 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 Michael Ganner 35 Substitution by Family Members because of the less formal requirements. In most cases people expect to be substituted by family members if there is a need and therefore grant them a Power of Attorney through an oral agreement or by conduct implying intent. This is an EPoA according to German but not to Austrian law. As a side note, Switzerland also established the Substitution by Family Members in 2013.15 In Austria, The Substitution by Family Members was established in 2007 (§§ 284b–e ABGB) and allows specific people to substitute a person with mental disabilities in a restricted field of mat- ters automatically when that person loses their decision-making capacity. It comes into effect without any judicial procedure (ex lege). Only registration in the Austrian Central Substitution Register (Österreichisches Zentrales Vertretungsverzeichnis) is obligatory.16 The registration requires a personal medical attendance report which confirms that the concerned person has lost his/her decision-making capacity. People with representation power are typically parents, children over 18 years, the spouse and registered homosexual partner if she or he has been living in the same domestic household with her/his partner for at least three years. The power to represent is restricted to daily dealings,17 contracts about nursing needs and “simple” medical treatment. Medical treatment entailing seri- ous consequences is excluded.18 IV. Comparison of Guardianship and Enduring Power of Attorney There are both advantages and disadvantages in having an EPoA in comparison with guardian- ship or custodianship. In general, the EPoA respects the autonomy of persons to a larger extent because it works without intervention by the state or other people. The main difference seems to be that with an EPoA the substitute (attorney) can be chosen freely while the guardian is normally appointed by a court. Although in reality, the guardian can also be chosen by the ward. The Sachwalter-Betreuungsverfügung (§ 279 para. 1 ABGB;19 § 1897 para. 4 BGB20) enables every person to name a guardian in advance. If this decision is made on the basis of sound decision-making capacity, the court is bound to the decision, if the chosen person is willing to take over the guardianship and if the appointment is not against the best interest of the ward. Hence the result here is very similar to that of an EPoA. Even if the person lacks decision- making capacity, the judge has to consider the wishes of the ward at the time. This means that the ward may propose a certain person as guardian at any time during the proceeding. 15 Häfeli, Grundriss zum Erwachsenenschutzrecht (2013) 76 et seqq; Boente, Reform des Erwachsenenschutzes in der Schweiz, BtPrax 2013, 175; Taban, Das neue Schweizer Erwachsenenschutzrecht – Die wichtigsten Regelungen im Rechtsvergleich mit Österreich, iFamZ 2012, 80 (81 et seqq); Wolf, Erwachsenenschutz und Notariat, ZBGR 2010, 73. 16 But the violation of this rule does not lead to any legal consequences because the law does not provide any. Hence the power to substitute will come into effect with or without registration; Ganner, Grundzüge des Alten- und Behindertenrechts2 (2014) 116. 17 “Daily dealings” are such which are usual for the specific person with disabilities according to the own income and property; see Barth/Kellner in Barth/Ganner 474 et seqq. 18 That is the case if important organs are concerned or if the treatments may cause physical or mental conse- quences for the patient for more than 24 days (= grievous bodily harm; § 84 StGB); Barth/Dokalik, Personensorge, in Barth/Ganner (eds), Handbuch des Sachwalterrechts2 (2010) 147 (185 et seqq). 19 Barth/Ganner in Barth/Ganner 59 et seqq. 20 Jurgeleit in Jurgeleit, Betreuungsrecht3 § 1897 BGB, Rn 28 et seqq; Lipp, Die Betreuungsverfügung als Instrument privater Vorsorge, in Sonnenfeld (ed), Nichtalltägliche Fragen aus dem Alltag des Betreuungsrechtes (2006) 177.