Continuing Power of Attorney in Israel
In 2017 the 19th amendment to the Legal Competency and Guardianship Law, 1962 (hereby: “the law”) came into effect. This amendment to the law allows for a person to draw up a document called “Continuing Power of Attorney”. What is this document, and how does it benefit the grantor?
What is an Enduring Power of Attorney?
A continuous power of attorney is a document that permits someone (hereby: “the appointer” or “grantor”) to appoint someone else (hereby: “the power of attorney” or “the appointee”) to make decisions on his behalf in the event that he loses his ability to do so.
The purpose of the amendment to the law is to expand the autonomy of the individual to make decisions on his behalf in the event that he loses his physical/mental capacity (hereby: “loss of capacity”). The law even encourages him to determine what will be done with him and his property in the event that he loses his ability to make decisions through drawing up an enduring power of attorney.
Benefits of a Continuing Power of Attorney
There are many benefits in preparing an enduring power of attorney, which are listed below:
- Actualization of the appointer’s will
This enables the appointer to determine who will take care of various matters and how they will be cared for if and when he loses his ability to make decisions.
- Regulation of intermediate situations: between loss of ability to make decisions and loss of legal competency
Loss of ability to make decisions does not mean loss of “legal competency,” which requires the appointment of a guardian. A continuous power of attorney provides an answer to those intermediate situations between loss of ability and loss of legal competency, and it enables the settling of these intermediate situations ahead of time.
- A short and simple process
A continuing power of attorney does not require the approval of the court in order to become valid (in contrast to the appointing of a guardian which requires a ruling from the court). After signing, the power of attorney will be submitted to the offices of the Administrator General and will take effect at the time needed. Consequently, the process is relatively short and simple.
- Preventing family conflicts
Since the appointer himself already determined who will care for him and how his affairs will be cared for ahead of time, family conflicts over these matters will be prevented.
Issues Included in the Enduring Power of Attorney
The grantor has the discretion to choose which of the following issues that he wants included in the continuous power of attorney. The possible issues are listed in Section 32B(B) of the law:
- Personal Issues
Housing, employment, etc.
- Property Issues
Management of assets, management of bank account, etc.
- Medical Issues
Type of doctor, type of treatment, etc.
After the appointer chooses which issues will be included in the enduring power of attorney, how will he actually settle them in the document? The appointer also has a few possibilities here, as listed below:
- Appointing a power of attorney
The appointer can appoint one or more powers of attorney for various matters. He can even appoint multiple powers of attorney for the same matter. In the event that multiple powers of attorney are appointed, the appointer will settle the division of authority amongst them.
- Giving preliminary guidelines
The appointer can give preliminary guidelines to his power of attorney, how he should carry out his authority.
The appointer is able to give, through an enduring power of attorney, preliminary guidelines to the power of attorney, which express his will about future decisions or actions to be done in his name by the power of attorney concerning the issues included in the power of attorney document (Section 32/31) of the law).
- Appointing an “informed” person
An appointer may determine that the power of attorney will report to the person/number of persons/Administrator General about his actions, thus he may be supervised to make sure he is faithfully doing his job.
The appointer will indicate, through the continuous power of attorney, one or more persons to whom the power of attorney will need to report to about the decisions or actions concerning the issues appointed by the power of attorney document (Section 32/16 of the law).
Who is Eligible to be an “Appointer” in a Continuing Power of Attorney?
In order for a person to draw up a continuing power of attorney for himself, he must meet the two cumulative conditions (Section 32B of the law) listed below:
- Adult (over 18)
- Competent — “Someone who is able to understand the meaning of giving an enduring power of attorney, its purposes and its results.”
Who is Eligible to be Appointed as a “Power of Attorney” in the Enduring Power of Attorney?
In order for a person to be appointed as a power of attorney, he must meet some of the cumulative conditions (Section 32C of the law) listed below:
- Adult (over 18)
- Individual (not a corporation)
- “A guardian was not appointed to him or his enduring power of attorney did not come into effect so long as the appointment is valid.”
The Power of Attorney’s Obligations to the Appointer
There are a number of guiding principles by which the power of attorney will operate when operating in the authority given him, as listed below:
- He will operate in good faith, diligence, skill, and dedication in guarding the best interest of the appointer.
- He will guard the dignity of the appointer, and share as many decisions with him as possible.
- Guarding the privacy of the appointer.
When Will the Enduring Power of Attorney Take Effect?
There are two possible times that an enduring power of attorney will take effect (Section 32/19 of the law), as listed below:
- From the moment that he is no longer able to understand/make decisions concerning the same matter of the enduring power of attorney.
- The appointer himself may determine, in the enduring power of attorney, which is the moment when he will be deemed incapable of making decisions on the matter.
The power of attorney shall inform the informed person (if such a person exists), and afterwards the Administrator General, about the existence of the conditions for the document coming into effect. The Administrator General will allow the enduring power of attorney to come into effect.
Expiration of the Enduring Power of Attorney
The validity of the enduring power of attorney will expire when one of the grounds put forth in Section 32/22 of the law is met:
- The appointer determined conditions of expiration, and those conditions are present.
- The death of the appointer or the power of attorney.
- The conditions of competency of the power of attorney cease to exist (as detailed above).
- “The power of attorney was appointed because he was a professional who would exercise his professional skills and his license was revoked.”
- “The power of attorney notified the appointer in writing that he is not interested in functioning as a power of attorney.”
- The appointer did not possess the conditions of competency (as detailed above) during the time the enduring power of attorney was drawn up.
- “The power of attorney was the spouse of the appointer and the marriage dissolved after the enduring power of attorney was granted, unless something else was clearly indicated in the document.”
Enduring Power of Attorney Shall be Prepared by a Lawyer Trained in this Field
Only a lawyer who possesses specific certification from the Administrator General will be eligible to prepare an enduring power of attorney. When the enduring power of attorney is prepared, the lawyer will explain the following things to the appointer:
- The legal significances of the enduring power of attorney.
- The different alternatives to an enduring power of attorney (Preliminary Guidelines of Guardianship, Preliminary Medical Guidelines, Expression of Will document .
- Matters that the enduring power of attorney may include, including preliminary guidelines, the appointment of informed persons, and the effective date.
The lawyer will approve the enduring power of attorney that the appointer has signed through free will while understanding its significance and its results (Section 32/14(E)).
Interested in Preparing an Enduring Power of Attorney? The Offices of Cohen, Decker, Pex & Brosh are at Your Service
In the offices of Cohen, Decker, Pex & Brosh you will encounter lawyers who specialize in family law, certified through the Administrator General to prepare an enduring power of attorney. Our lawyers will handle your request throughout the entire process.