Page - 39 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 Michael Ganner 39 There are no important differences between Austria and Germany as far as the duties and obli- gations of an attorney are concerned. An attorney primarily has to act according to the will of the principal as expressed in the mandate, which is normally non-remunerated. That means that the will expressed in the EPoA has to be carried out even if this is against the “objective best interest” of the principal.39 The will that the principal expresses after losing decision-making capacity also has to be taken into consideration, but the main determiner in these cases is the expressed will in the EPoA and if there is none, the best interest of the principal (Wohl des Vollmachtgebers). An attorney, like a guardian, has the obligation to perceive and fulfil the wishes of the principal and to protect him or her from harm (Wunschermittlungspflicht; § 284h para. 1 in conjunction with § 281 para. 1 and 2 ABGB; § 1901 para. 3 BGB).40 E. Control Contrary to a guardian, an attorney is in general not subject to a court. In Germany an attorney sometimes needs, just as a guardian, judicial approval for certain measures. That is the case with - deprivations of liberty, - compulsory treatment (§ 1906 BGB), - medical treatments (§ 1904 BGB), if the attorney and attending doctor do not agree about the will of the patient and if there is a reasonable danger that the medical treat- ment could cause the death or severely damage the health of the patient and - several matters concerning property (§§ 1821f and 1907f).41 In Austria, an attorney never needs judicial approval. Only in cases of proven abuse can a court or guardian cancel the EPoA. F. Registration The coming into effect as well as the termination, revocation and cancellation of EPoAs can be registered in the Austrian Central Substitution Register (Österreichisches Zentrales Vertretungsver- zeichnis; ÖZVV; § 140h Notariatsordnung).42 This register is operated by the Austrian Notary Chamber (Österreichische Notariatskammer) and the registration is completely optional. Although the registration of the coming into effect is only possible with a personal medical attend- ance report from a physician which declares that the principal has lost decision-making capacity, the registration is not a premise for the coming into effect of the EPoA. The Austrian Central Substitution Register only shows the number of EPoAs currently registered. But as there is no legal obligation to register EPoAs, the actual number in Austria is unknown. Furthermore the Austrian Central Substitution Register does not provide information on how many of the registered EPoAs came into effect or how many are actually being used. This certain- ly means that many more EPoAs exist than are registered. A similar problem occurs regarding the Substitution by Family Members. 39 ErlRV 1420 BlgNR 22. GP 29; Ganner in Barth/Ganner 369. 40 Albrecht in Löhnig/Schwab/Henrich/Gottwald/Kroppenberger 47 et seq; Barth/Ganner in Barth/Ganner 92 et seqq; Kieß in Jurgeleit, Betreuungsrecht3 § 1901 BGB Rn 34 et seqq, 39. 41 BT-Drucks. 16/8442, 19. 42 Ganner in Barth/Ganner 374.