Page - 37 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 Michael Ganner 37 ty to readily appoint an attorney. An oral authorisation or even conduct implying this intent is sufficient (§§ 1002 et seq ABGB, §§ 167 et seq BGB). In the 1980’s and 1990’s EPoAs also became rather popular for personal matters such as which medical treatments to undertake and when as well as an instrument to organise all the important issues associated with old age and serious illness.26 But it was not clear if all personal matters were covered by the legal provisions. That is why in 1999 Germany clarified its position and stat- ed that the Vorsorgevollmacht could also cover medical treatment (§ 1904 BGB). Again in 2009, the legislator explicitly acknowledged the long established practice that the Vorsorgevollmacht in health care allows the attorney to consent to or to withhold life-sustaining medical treatment (§ 1901a BGB). Moreover, since 1999, the BGB provides that an attorney may be granted the power, under certain circumstances and with the permission of the custodianship court, to place the grantor in a closed institution and consent to measures depriving him of his liberty (§ 1906 BGB). Recently, in February 2013, an amendment (to § 1906 BGB) opened up the possibility to grant the power to consent to compulsory treatment, again under specific conditions and with the permission of the custodianship court. In Austria, the main reason to make a legal amendment was to safeguard the interests of the grantor. At times, grantors of an attorney can control the attorney, give him or her directives and revoke his or her power at any time. However, the problem arises that EPoAs are used mainly in situations where the grantor is not able to do this because he has lost decision-making capacity with the passage of time, hence more formal requirements seemed to be necessary. The Endur- ing Power of Attorney (Vorsorgevollmacht) was therefore regulated in Austria by a special statuto- ry provision in 2007 in the civil code.27 While both regulations, the “normal” mandate as well as the EPoA, have to be applied concurrently, the regulation of the EPoA is a lex specialis to the nor- mal mandate, so if the regulations conflict, those concerning the EPoA take priority.28 B. Coming into Effect and Scope There are some differences concerning how EPoAs come into effect. In Austria, EPoAs come into effect automatically with the loss of the decision-making ability.29 That is what the law provides for in Austria (§ 284f para. 1 ABGB), however a different time or another condition can be deter- mined by the principal. In Germany, EPoAs usually come into effect immediately. Only where personal matters such as health care, deprivation of liberty and compulsory treatment are con- cerned is the legal situation similar to Austria. These measures can only be ordered by the attor- ney if the grantor has lost his or her decision-making capacity.30 All matters that can be subject to guardianship, which are in general terms all financial and per- sonal (health care, change of domicile etc.) matters of the principal, can also be subject to an EPoA. Only in strictly personal (höchstpersönlichen) matters, a substitution – even by an attorney – is 26 Wildeman, Protecting Rights and Building Capacities: Challenges to Global Mental Health Policy in Light of the Convention on the Rights of Persons with Disabilities, Journal of Law, Medicine & Ethics 2013, 48. 27 Schauer, Schwerpunkte des Sachwalterrechtsänderungsgesetzes (SWRÄG 2006). Teil 2, ÖJZ 2007, 217 (219 et seqq). 28 Ganner in Barth/Ganner 347. 29 But the loss for a short temporary period is not enough; Schwimann, Neuregelung im Obsorge-, Kuratel- und Sach- walterrecht, EF-Z 2006, 68 (70). 30 Jurgeleit-Kieß, Betreuungsrecht3 § 1904 BGB Rn 28 et seqq and § 1906 BGB Rn 48.