Page - 36 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 Enduring Power of Attorney (EPoA) 36 A clear advantage of the EPoA is the opportunity to make certain decisions in advance, such as who will get the house or car if the principal has to move into a nursing home, which medical treatment should be conducted under specific circumstances etc. The choice to accept or refuse a certain medical treatment may also be the subject of a Living Will.21Hence this author would highly recom- mend combining an EPoA with a Living Will. The problem is that Living Wills are ignored in many cases (e.g. by physicians and/or family members),22 can be diminished by appointing an attorney who has the mandate to enforce any decisions made in the Living Will.23 This is explicitly the obliga- tion of the custodian in Germany (§ 1901a para. 1 BGB), but also a duty of the guardian in Austria. Last but not least, an attorney has more freedom than a guardian concerning decisions in im- portant property matters. A guardian is especially limited when it comes to investing in companies (partially) owned by the ward because the guardian’s only purpose is the best interest of the repre- sented person. Therefore investments are bound to the life expectancy of the ward. Attorneys in contrast only have to follow the will of the principal, which can be expressed in the EPoA and can include financial investments in the interest of a company, partners and other persons (e.g. family). A significant difference to guardianship, and ultimately a disadvantage of the EPoA, is that an attor- ney is not accountable by anyone.24 In Austria, an attorney, unlike to a guardian, does not even need any additional authorisation from a court or an additional personal medical attendance report from a physician in order to make a decision about important medical treatments. In Germany, the attorney needs, like the custodian, judicial approval for important medical treatments or refusing them (§ 1904 BGB), for deprivations of liberty, compulsory treatments (§ 1906 BGB) and for several matters concerning property. However, if someone is concerned by this issue, she or he can ap- point a supervisor for the attorney and/or provide the duty within the EPoA to get a second opinion if certain important matters have to be dealt with.25 Moreover, if someone suspects an attorney of abuse he or she may go to court, where the matter has to be proven. If abuse has occurred, either the court or the guardian, who would have been appointed for the time being, may cancel the EPoA. V. Comparison of EPoA: Austria and Germany A. Legal Framework for Personal Matters In Austria and Germany Powers of Attorney concerning property and financial matters of the grantor have been in use since the 19th century. Both the ABGB and BGB provide the opportuni- 21 This is true for German law, but in Austria the Patientenverfügungsgesetz (PatVG) only provides the opportunity to refuse a certain medical treatment. Everything else, such as the selection of a special medical treatment, can- not be part of a Living Will, but only of an EPoA; König, Allgemeines zur Patientenverfügung, in Barth/Ganner (eds), Handbuch des Sachwalterrechts2 (2010) 380 (381); Albrecht, Vorsorgevollmacht und Patientenverfügung als In- strumente der vorsorgenden Rechtspflege, in Löhnig/Schwab/Henrich/Gottwald/Kroppenberger (eds), Vorsorge- vollmacht und Erwachsenenschutz in Europa (2011) 45 (45 et seqq). 22 E.g. OGH 9 Ob 68/11g Zak 2012/762 (Kletecka) = ÖJZ 2012/116 (Rohrer) = iFamZ 2013/14 (Ganner) = ÖJZ EvBl 2013/60 (Rohrer) = RdM 2013/74 (Kopetzki) = JBl 2013, 106 = EF-Z 2013/3 (Bernat) = EF-Z 2013/22 = RZ 2013/2 = RZ 2013/EÜ 54. 23 Löhnig, Probleme der Vorsorgevollmacht nach deutschem Recht, in Löhnig/Schwab/Henrich/Gottwald/Kroppen- berger (eds), Vorsorgevollmacht 15 (19). 24 The guardian is checked by court regularly, in general every year. Löhnig in Löhnig/Schwab/Henrich/Gottwald/ Kroppenberger 24 et seqq. 25 Ganner, Vorsorgevollmacht, in Barth/Ganner (eds), Handbuch des Sachwalterrechts2 (2010) 345 (349, 365 et seq).