Page - 40 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 Enduring Power of Attorney (EPoA) 40 At the end of 2013 some 36,302 EPoAs were registered in the ÖZVV, whilst in Germany the num- ber is approximately 2.2 million.43 Given that registration in Germany is also optional, one could reasonably expect the number of unregistered EPoA’s to also be in the millions. Since 2005, there has been a Central Register for Advanced Instruments at the German Federal Chamber of Public Notaries on a statutory basis (§§ 78a–c Bundesnotarordnung).44 G. Registration Being in possession of clear decision-making ability is not necessary to revocate an EPoA in Aus- tria.45 Rather, the capacity to simply build a natural will and to express that (Äußerungsfähigkeit) is sufficient for this to occur. This can lead to problems as this makes it relatively easy to revoke an EPoA, however once revoked the person without mental capacity is unable to renew the former EPoA. If an EPoA is revoked a normal mandate still exists, because the revocation of mandates according to §§ 1002 et seq ABGB requires decision-making capacity. But with a normal mandate an attorney is not able to make important decisions whereas usually a guardian has to be appointed. By contrast, in Germany the revocation of an EPoA requires the same decision-making capacity as its execution.46 VI. Conclusion In general, there are very few specific differences in the regulations concerning EPoAs when comparing German and Austrian law. Both kinds of “Vorsorgevollmacht” are mainly designed with family members or other persons close to the grantor in mind. On the one hand, it is more difficult to execute an EPoA in Austria than in Germany because of the numerous formal re- quirements. On the other hand the high formal requirements in Austria lead to more autonomy for the attorney than is provided for in Germany (no judicial approvals even for important issues). An EPoA is an important instrument which helps with the implementation of the CRPD into na- tional law. As an instrument of self-determined substituted decision-making (the main purpose of the CRPD is the autonomous and therefore if necessary substituted decision-making) it is recog- nised as the best practice model to safeguard the autonomy of people suffering the deprivations of age and those with other disabilities. Many of the employed supported decision-making mod- els, such as Circle Networks (New Zealand), Microboards (Canada),47 Personal Ombudsman (Swe- den), Personal Assistance, Person of Trust (Belgium and Austria)48 and especially the Representation Agreement (British Columbia, Canada)49 work in a similar way or do not offer more autonomy 43 Information of the Österreichische Notariatskammer and Deinert, Betreuungszahlen 2012, BtPrax 2013, 242 (the figure here is not current as the German data is from 30.9.2013) 44 http://www.vorsorgeregister.de/ (31. 1. 2015). 45 ErlRV 1420 BlgNR 22. GP 4; Ganner in Barth/Ganner 363. 46 Coeppicus, Patientenverfügung 121, 133. 47 Circle Networks and Microboards are counsel group made up of family members, friends, social workers and other supporters who give the person with disabilities the necessary information and help to assist the person to make a “reasonable” decision on his or her own. 48 Personal Ombudsman, Personal Assistance and Person of Trust are usually individual persons who support the individual with disabilities and encourage him or her to make “reasonable” decisions on his or her own. 49 The Representation Agreement is an EPoA with two modes: the “standard powers” and the “broader powers” (also called non-standard provisions). The “standards powers” come into effect without the legally effective con- sent of the grantor. Decision-making capacity is not necessary. Its scope is restricted to not very important mat-