Page - 41 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 Michael Ganner 41 than an EPoA.50 From this author’s point of view it is, therefore, the most suitable instrument to accomplish the purposes of the CRPD as far as it concerns the aged, people with progressive degenerative illnesses or people with physical or mild intellectual disabilities.51 It is a widely known legal instrument in most countries and useable on an international level.52 Obstacles for a wider-spread use in Austria seem to stem from the following: the form recom- mended by the Ministry of Justice is quite complicated; hence people are discouraged from exe- cuting an EPoA. Although one could argue that a declaration designed to cover such a wide range of often serious and unforeseen events in a person’s future should be necessarily complicated.53 Some people are also discouraged by the costs which arise from the execution of an EPoA by an attorney or notary. It was found that an EPoA is still not that well known in Austria. Austrians are generally not well informed about the instruments they can set up (EPoA, Living Will). Additionally, Austrians – perhaps to a greater degree than people in other countries – seem to be unwilling to take their future into their own hands, but rather prefer to rely on state institutions to take care of their problems if and when they arise. In Germany, it may be seen as a weak point of an EPoA that attorneys who are family members may operate without sufficient checks and balances54 whilst on the other hand, attorneys-at-law do not have enough personal contact with the principal.55 Nevertheless, in general an EPoA is an appropriate and valuable instrument to both increase and improve autonomous decision-making for people with disabilities and should therefore be more heavily promoted within the implementation process of the CRPD. ters. The “broader powers” enables the attorney to also decide about institutionalisation and termination of life sustaining measures, but require legally effective consent of the grantor; see Lipp/Bagniewski/Dankert/Newell, Das Representation Agreement in British Colombia (Kanada) – ein Modell für Deutschland? BtPrax 2013, 217. 50 For more information about these models see Ganner, Modelle unterstützter Entscheidungsfindung, iFamZ 2014, 67 51 For other people with severe mental disabilities other instruments, including substituted decision-making, may be necessary. 52 The Hague Convention on the International Protection of Adults (13. 1. 2000) provides regulations determining which national law is applicable, see Lipp in Rixecker/Säcker/Oetker (Hrsg), Münchener Kommentar zum Bürgerli- chen Gesetzbuch X6 (2015) Art 24 EGBGB Anh I, ErwSÜ. 53 A number of forms may be found on the internet; the official form of the Austrian Ministry of Justice may be available at: http://www.justiz.gv.at/web2013/file/2c948485246bff6f0124b96dd98b412f.de.0/formular_vorsorge- vollmacht.pdf (31. 1. 2015). 54 E.g. Löhnig in Löhnig/Schwab/Henrich/Gottwald/Kroppenberger 24 et seqq. 55 In Austria no distinction is made between attorneys-at-law and notaries, who are obliged to assume no more than five guardianships by law (§ 274 Abs 2 ABGB). The legal application against this rule with the argument that this is “forced labour” and therefore a violation of Art 4 Abs 2 ECHR was rejected by the European Court of Hu- man Rights; EGMR 18. 10. 2011, 31950/06, Graziani-Weiss.