Enduring Power of Attorney

Many of us dedicate extensive thought and resources to planning for what happens after our death. We carefully consider our Last Will and Testament, taking into account all eventualities. Yet, most of us don't give any thought as to who will care for us if, G-D forbid, we become unable to make decisions and look after ourselves.

A recent amendment to the Legal Capacity & Guardianship Law (1962), introduced a new tool into the Israeli legal arena—the "Enduring Power of Attorney" (EPA). This enables appointing a trusted person (or persons) to make decisions on our behalf, should we become incapacitated or incapable of making decisions. The EPA can specify who will manage our money/property or who will make medical decisions if we lack the mental capacity to do so ourselves, for reasons including Alzheimer's or an accident. The EPA also allows us to provide guidelines for our preferred method of care. We can now make these crucial decisions, while we are still competent. We should not leave these important decisions to others!

Until the recent amendment, if, for example, a person was incapable of taking care of himself due to dementia, banks would not allow him or his family members to access his bank account without a court appointed legal guardian (in Hebrew: an "Apotropos").

The requirement that a legal guardian only be appointed by means of a court order raises several difficulties. First, it requires the courts' supervision, the intervention and control of the Administrator General's office (in Hebrew: the "Apotropus Haklali"), the filing of paperwork and financial reports, the collection of documents, receipts, and more, and consequently it is a costly and cumbersome process. More importantly, according to this mechanism, it is the court that decides for the incapacitated person who should take care of him/her and how the assets and affairs should be handled. Indeed, the courts generally appoint a family member to act as the guardian; however, that person is not necessarily the one we would choose to make crucial decisions for us and to handle our finances and other matters. Family members do not necessarily have the time, knowhow or ability to act as we would want. Additionally, appointing family members as guardians has potential sensitivities. For example, sibling rivalry may complicate issues such as how to spend money, who should control financial matters, the preferred healthcare strategy, etc. (This is particularly sensitive considering that the more resources spent during the period of incapacity means the less money left for future beneficiaries to inherit). Furthermore, family members may be reluctant to make medical decisions for their loved ones that contradict their own beliefs or conscience.

Enduring Power of Attorney (EPA)

The EPA is a legal instrument which allows someone to appoint a person or persons whom he/she trusts to make decisions, should they become incapacitated or unable to make independent decisions. The EPA can include guidelines to a wide range of subjects such as management of assets and investments, welfare activities and healthcare preferences. Examples of EPA provisions include: choice of a doctor, private healthcare, residence in a five-star nursing home, home care, a list of must-do activities (e.g. yoga class twice a week, walks, daily synagogue prayers, hair and nail care), dietary requests, donations, etc. Such guidelines provide the appointees with the direction and legitimacy to spend the appointing person's funds and time in accordance with predetermined wishes.

In an EPA, the appointing person can also choose several appointees to take care of his/her affairs, jointly or separately, and/or appoint a separate appointee for each type of decision—i.e., medical, financial or welfare-related.

An additional important feature of the EPA is that it allows the appointing person to stipulate the conditions upon which it shall become effective, as well as the person who decides if such conditions have been fulfilled. The EPA can be altered or cancelled at any time by the appointing person.

For an EPA to be enforceable, it must be drafted by a lawyer who has been certified by the Administrator General for this purpose, signed by the appointing person, and submitted to the Administrator General's office through a designated on-line platform. This submission must be accompanied by the appointee's consent to act as stipulated in the EPA.

We all hope to live a long, healthy, and fulfilling life, but we cannot afford to be oblivious to the possibility that at some point we may need someone else to look after us and our interests. An EPA allows us to prepare for such a scenario and ensures us peace of mind, knowing that someone we trust will look after us and our affairs, respecting our wishes, needs and aspirations.

Please note: The information contained herein is general in nature, is provided for informational purposes only, and should not be construed as legal or financial advice. You should consult with a certified lawyer before making any decisions in respect of the subject matters contained herein.

Judy Rinot, Attorney and Notary
1 Shwartz St. Raanana 43212 Israel
Tel: +972-9-744-0110/2 Fax: +972-9-744-0114

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