Page - 38 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 Enduring Power of Attorney (EPoA) 38 banned by law.31 These matters include the creation of wills, a Living Will, the execution of an EPoA, the right to vote and marriage. In Austria, an attorney is not allowed to decide about the deprivation of liberty or compulsory treatments. This has to be decided under a public law regime by certain persons who are ap- pointed by law.32 C. Requirements The execution of an EPoA is strictly personal, so substitution is not possible.33 At the moment of the execution, the principal needs to be in possession of decision-making capacity.34 In Austria, all EPoAs have to be in writing and the scope must be described in detail (§ 284 et seq ABGB). Two forms are provided for by the law: (1) The EPoA for simple matters35 that are not im- portant in practice and the EPoA for important matters. It may only be established by a solicitor, notary or a court who have to inform the ward about both the consequences and possibility of cancellation. The act of informing has to be documented in the warrant of attorney. Important matters which make it obligatory to fulfil the formal requirements of the EPoA for important matters are: (1) Medical treatment with normally serious consequences; (2) the permanent change of domicile and (3) important property matters. Whether the EPoA concerns simple or important matters, the selected attorney is not allowed to have a close relationship to the institution the person is living in (e.g. nursing home; § 284f para. 1 ABGB) and the attorney is not allowed to pass the mandate to another person for decisions on medical treatment or change of domicile.36 As far as other matters are concerned, delegation is only possible if the principal did not prohibit this in the EPoA. In Germany, only powers in personal matters must be granted explicitly and in writing (§ 1904 para. 2 and 5 as well as § 1906 para. 3, 4 and 5 BGB).37 A general EPoA “for all affairs” or “all per- sonal matters” will therefore not be sufficient, even if it is done in writing and signed by the gran- tor. The EPoA must specifically include medical treatment, compulsory treatment, or deprivation of liberty in its scope.38 D. Duties and Obligations of the Attorney 31 Barth/Dokalik in Barth/Ganner 163 et seqq; Roglmeier/Lenz, Die neue Patientenverfügung (2009) 45. 32 If the person lives in a home for the elderly or for people with disabilities, the deprivation of liberty can be con- ducted there according to the Heimaufenthaltsgesetz (HeimAufG); Strickmann, Heimaufenthaltsrecht2 (2012). All other measures of force (deprivation of liberty and compulsory treatment) have to be conducted in a psychiatric facility according to the Unterbringungsgesetz (UbG); Kopetzki, Grundriss des Unterbringungsrechts3 (2012). 33 ErlRV 1420 BlgNR 22. GP 28; Schauer, iFamZ 2006, 149. 34 Coeppicus, Patientenverfügung, Vorsorgevollmacht und Sterbehilfe (2009) 120; Bauer/Klie, Patientenverfügungen/ Vorsorgevollmachten – richtig beraten?2 (2005) 60 et seq; Ganner in Barth/Ganner 353. 35 It can be compiled by being (1) written and signed by one’s own hand, (2) written by someone else and signed by one’s own hand and witnessed by three people who cannot be authorised, (3) written by someone else and no- tarised or (4) with a notarial deed (Notariatsakt); Schauer, iFamZ 2006, 149. 36 The purpose of this regulation (§ 284h clause 3 ABGB) is to avoid misuse and to guarantee that important issues are decided by the person whom the grantor placed his confidence in. 37 Bauer/Klie, Patientenverfügungen/Vorsorgevollmachten2 59 et seq. 38 §§ 1904 and 1906 BGB; Kieß in Jurgeleit, Betreuungsrecht3 § 1904 BGB Rn 64 et seqq and § 1906 BGB Rn 74 et seqq.