The Enduring Power of Attorney in Israel
by John de Frece, Advocate
The first in a series of four articles on vitally important documents to which every family should have immediate access to allow dealing deal with a family member’s wellbeing in case of mental or physical disabilities, medically anticipated or unforeseen circumstances. The documents in question are an Enduring Power of Attorney, and Wills. The articles will explain the need for these documents, how to go about preparing them and how to manage them in the event that this become necessary.
An Enduring Power of Attorney is a relatively new legal arrangement created as an amendment to the Guardian and Custodianship Law (1962). It expresses an entirely new legal approach to persons with disabilities. Prior to the enactment of this amendment, the only available choice when it came to making decisions for the mental or physical welfare of an individual unable to make those decisions for themselves, was to apply to the Family Court for the appointment of a guardian.
A guardian would typically be empowered to deal with both financial and health decisions. However, such an approach is definitely not “user friendly” as the guardian would be required to frequently apply to the court for additional permission to carry out various aspects of his or her duties.
Apart from the expense involved, which would include the guardian’s fees, there were also considerable additional burdens imposed on the guardian. For example an annual financial report from an accountant recording every single amount of money received and paid out on behalf of the incapacitated individual had to be lodged. Such a report comes at considerable expense.
The law now provides three options to help people having difficulty managing their affairs by themselves.
1 An Enduring Power of Attorney
2 Obtaining support in taking decisions: the “decision making supporter”.
3 Traditional Guardianship (as described above for those who do not wish to make an EPOA)
In addition to the above there are a number of other legal ways designed to protect certain assets: the registration of cautionary notices on real estate or the appointment of a person to conduct bank affairs.
The variety of such possibilities enables a person who needs assistance and support a range of alternatives which are appropriate for that person’s requirements.
This article/blog will deal only with Enduring Power of Attorney.
1. What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a legal document through which you can plan your future while you are still able and capable of taking decisions for yourself. You can decide in what way your life will be conducted in the future should you reach a situation in which you will not be able to make such decisions or to conduct your affairs (the legal expression is “to understand the matter”). You may appoint somebody who you trust as your “Empowered” person, who will act on your behalf in various aspects of your life.
You, as the person who signs and writes the power of attorney, is defined as the “Appointer”. As the Appointer you can decide which matters you wish to designate to the “Empowered” person and the limits of his or her authority.
You also have the right to alter or cancel the power of attorney provided you have not decided to limit your own rights to cancel the power of attorney.
Enduring Powers of Attorney can only be prepared by an attorney who has no interest in the matter, who has completed the course and has received certification from the Ministry of Justice. The PoA is deposited with the Administrator General who is obliged to acknowledging the existence of the PoA deposited with him, to the Appointer. This ascertains that the PoA is in accordance with the Appointer’s wishes.
2. Why is this important?
The basic concept of the Enduring Power of Attorney takes into account:
2.1 That the Appointer would really prefer to have people close to him or her and whom they trust to make decisions for them when they are no longer able to manage their affairs rather than a court-appointed guardian, which could very well be a profit-making company taking a monthly “cut” from that person’s assets,
2.2 It is much better to have an arrangement which does not require a guardian appointed by the court having to make applications to the court at regular intervals for instructions. This in itself is a very expensive procedure.
The Enduring Power of Attorney comes into force once it has been medically determined that you are unable to make decisions for yourself.
3. The” Appointer”
The Appointer has to be an adult resident of Israel who understands the implications of an Enduring Power of Attorney, its purpose and its consequences.
4. The “ Empowered “ Person
The law designates the position of the Empowered person as one who has to trust of the Appointer. Accordingly he or she has to be an individual over the age of 18 and cannot be an Empowered person for more than three Appointers.
Naturally, the Empowered person must have the ability to legally manage the affairs of the Appointer (for example, he/she cannot be bankrupt or designated as a “Bank Restricted” client.)
Furthermore, to prevent any conflict of interest and exploitation, the Empowered person cannot provide the Appointer certain services for payment: this includes lawyers, doctors, accountants or others.
It is important to emphasize that the choice of the Empowered person should be made freely and not to gratify or to avoid offending an individual. This is a serious substantive decision which requires considerable thought as to who the Empowered person should be.
The Appointer will require the agreement of the Empowered person to accept the role. Accordingly he or she should understand the content of the Power of Attorney and sign the document before a lawyer. He or she will also be required to sign a form of agreement to waive confidentiality to enable examination as to whether the candidate fulfills the requirements of the law.
5. What matters can be included in an enduring power of attorney?
An Enduring Power of Attorney can be fully inclusive or restricted to certain matters:
5.1 Property – in other words authority to make decisions and carry out acts connected with property, financial undertakings, investments, the administration of real property or businesses, and the realization of rights due to you.
5.2 Personal matters – the authority to take decisions and actions, including medical matters but excluding property. The intention being to deal with your quality of life, to supply daily requirements such as food and clothing. Participation in the community, choice of residence (at home or in sheltered accommodation.)
5.3 Medical matters - Most people, naturally – are uncomfortable dealing such matters. However, if you are a responsible person and look to the future – do give some thought to the advantages of the Enduring Power of Attorney and the making of a will, which will be dealt with in the next set of articles. An all-inclusive fee for preparing both sets of documents can be negotiated.
About John de Frece
John de Frece is an Advocate specialising in English and Israeli law. He is a (non-practising) British-trained Solicitor and can provide opinions on English and Israel law, translations and Notarial certification, recognition of foreign judgments and their implementation in Israel and drafting and explanation of contracts, wills, etc. He is based in Ramat Gan.