“A man’s desire is his glory”
A durable power of attorney is a legal document that allows any adult (over the age of 18) to explicitly determine the identity of the person who will be authorized to make decisions on his behalf and handle his medical and/or financial affairs on the day he is no longer capable of making decisions and handling them himself. He is also entitled to determine how his life will be conducted in the new lifestyle that was imposed on him when his judgment and ability to make decisions were impaired.
In fact, this appointment allows a person to plan his future as he sees fit in a situation where, medically (physically or mentally) he would be denied the option.
The normative framework:
- Legal Training and Guardianship Law, 1962
- Legal Training and Guardianship Law (Amendment No. 18), 2016
- Legal Capacity and Guardianship Regulations (Enduring Power of Attorney, Advance Directives for the Guardian and Expression of Will), 2017
Legal Training and Guardianship Law, 1962 – Background
The Legal Capacity and Guardianship Law, enacted in 1962, allows for the appointment of a guardian for a minor and an adult in various situations in accordance with Section 33(a) of the law.
Regarding the appointment of a guardian for a person (adult), the law lists two situations:
- When an adult ” is unable, permanently or temporarily, to take care of his affairs, all or part of them, and there is no one who is authorized and willing to take care of them in his place ,” Section 33(a)(4) of the Law.
- When a person has been defined or meets the definition of ” legally incompetent ” as defined in the law, ” A person who, due to mental illness or mental impairment, is unable to take care of his affairs, the court may, at the request of his spouse or relative or at the request of the Attorney General or his representative, and after hearing the person or his representative, declare him legally incompetent ,” Section 8 of the law.
In a situation where a person is unable to function properly and manage his or her affairs, a court is authorized to appoint a guardian to protect that person in managing his or her affairs, including his or her body, health, and finances.
The guardian’s role is to take the best possible care of that person’s affairs according to the powers granted to him by a court, while constantly ensuring his well-being, interests, and needs, as well as preserving all of his rights while preserving his dignity.
Appointing a guardian in court is a complicated process, possibly even a long one, due to disagreements that may arise between family members and others that may make it difficult to make the appointment as determined.
The appointment of a guardian by the court is subject to and subject to the supervision of the various authorities. In addition, the guardian is obliged to report various reports regarding the person for whom he is appointed to the Ministry of Justice to the General Guardian. Furthermore, there are many situations that require the approval and consent of the court for the performance of actions by the guardian appointed to him, which leaves many issues within the jurisdiction of the court and binds the person to the court throughout his life.
Enduring Power of Attorney – the good news.
In March 2016, the Legal Capacity and Guardianship Law was amended (Amendment 18), with the amendment essentially referring to preserving a person’s dignity by realizing their will when they are competent to do so in the event that they lose their capacity for any reason.
The significant change, in my opinion a dramatic change, is the possibility of appointing a person through a durable power of attorney, according to which the appointer gives instructions to his supervisor regarding the nature of the care of his health, finances and property in a way that will fulfill his wishes regarding how his personal affairs will be handled when he is unable to handle them himself.
The amendment fulfills the principle of preserving the person’s autonomy so that his independence is preserved, as much as possible, in a manner in which he is fully involved in his life and in accordance with his advance directives.
The appointee enjoys another and central advantage of a durable power of attorney, which is the choice of his own free will while he is clear in his opinions and thoughts, and he himself chooses the identity of the person who will handle his affairs, and thus he is not at the mercy of the court or his family members.
A person’s medical condition may change in the blink of an eye, whether as a result of an accident (car accident, work accident, etc.), old age diseases (dementia), or mental disability that may impair his judgment. The appointer may appoint through a lasting power of attorney for all of his personal (including medical) and property affairs or only for some of them.
What are the issues that can be regulated within the framework of a durable power of attorney?
Medical matters – any matter related to the care of a person’s body and health, this issue can be regulated by a “medical durable power of attorney”, separate from a general durable power of attorney.
Personal issues – any matter related to a person’s personal well-being, starting with their place of residence, health, medicine, and well-being (body and mind), social issues.
Finances and property – handling a person’s assets, finances, and liabilities.
The appointer can also make general determinations regarding the function of the proxy as a person authorized to make future decisions on his behalf on various issues and leave the proxy with discretion regarding the content of the decisions. The appointer can, on the other hand, precisely detail his wishes and opinions regarding making decisions on various issues. This will be done by establishing ” advance directives .” These directives can also include specific instructions regarding medical matters such as: resuscitation, disconnection from devices in a state of brain death, and the like.
The amendment to the law states that the appointer may determine the identity of the persons who will receive information or reports from the proxy regarding any decision he has made or actions he has taken, and may also determine that the General Custodian will supervise the proxy.
After determining the identity of the proxy, the appointer may address any issue he deems appropriate:
- The appointer may provide the proxy with written instructions on how to act and what decisions to make in changing situations and on the various issues that may arise.
- The appointer may authorize the proxy to act freely according to his discretion in making decisions in his matter.
- The appointer may limit the power of attorney to specific issues, such as his medical affairs and their various conditions or his property affairs, or of course to both.
When will the enduring power of attorney take effect?
Within the framework of an enduring power of attorney, the appointer determines the conditions upon the fulfillment of which the enduring power of attorney enters into force. Only when these conditions are met will the power of attorney be used and the attorney will step into the shoes of the principal.
There may be a situation where the appointer does not explicitly set specific conditions for the power of attorney to come into effect. In such a situation, the enduring power of attorney will come into effect based on a professional medical opinion, which will determine that the appointer is unable to continue managing his life and make decisions on matters for which the enduring power of attorney was granted.
Enduring Power of Attorney – in practice…
A durable power of attorney is a legal procedure for all intents and purposes. Only an attorney who has been certified by the General Guardian may engage in this field, provided that he has no personal interest in the power of attorney.
A durable power of attorney will be signed before a qualified attorney according to a form. A true copy of the power of attorney will be deposited with the General Guardian as a prerequisite for its entry into force. If and when there is a requirement as a prerequisite for the durable power of attorney to enter into force, the deposit of the power of attorney will necessarily ensure that a guardian will not be appointed for that person. The attorney is responsible for registering the request with the Ministry of Justice.
From the date the enduring power of attorney is deposited with the general guardian until the enduring power of attorney enters into force, a “reminder” will be sent to the grantor, once every three years, in order to ensure that his will, opinion, or intentions have not changed due to a change in circumstances or any other matter.
If a person has replaced/changed the power of attorney and several powers of attorney have been deposited on his behalf in the same matter, the last power of attorney deposited will be deemed definitive.
Our office is authorized by the Office of the General Guardian in the Ministry of Justice to issue a durable power of attorney. Furthermore, our office believes that the importance of issuing a durable power of attorney concerns every person, at any age, and from a sober perspective that the reality in which we live may change beyond recognition without prior notice. The issuance of a durable power of attorney will inevitably lead to the fulfillment of the person’s wishes as determined in advance, in connection with the identity of the attorney who will take care of his affairs and fulfill his wishes in accordance with his instructions given in advance, this is in a purposeful difference from a person who needs the appointment of a guardian and who will be appointed against his will and decide for him independently.
