“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 role of the guardian is to take the best possible care of that person’s affairs according to the powers that a court has granted him, while constantly ensuring his welfare, interests, needs, and 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 who may make the appointment as prescribed difficult. 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 and 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 exercising his will when he is competent to do so in the event that he loses his capacity for any reason. The significant change, in my view a dramatic change, is the possibility of appointing a person through a durable power of attorney, under which the appointer gives instructions to his appointee regarding the nature of the care of his health, finances and property in a manner 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 appointer 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 thoughts and thinking, and he himself chooses the identity of the person who will handle his affairs, 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 (traffic accident, work accident, etc.), old age diseases (dementia), mental disability that may impair his judgment. The appointer may appoint through a durable power of attorney all of his personal (including medical) and property affairs, or only 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 matter can be regulated by a “medical durable power of attorney”, this is separate from a general durable power of attorney. Personal matters – any matter related to the person’s personal well-being, starting from their place of residence, health, medicine and well-being (body and mind), social issues. Finances and property – handling the person’s assets, finances and obligations. The appointer can also establish general determinations regarding the function of the proxy as a person authorized to make future decisions on his behalf on various matters and leave the proxy with the discretion regarding the content of the decisions. The appointer can, on the other hand, precisely detail his wishes and opinion regarding making decisions on various matters, 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, etc. 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?
In the framework of an enduring power of attorney, the grantor determines the conditions under which the enduring power of attorney will take effect. Only when those conditions are met will the power of attorney be used and the grantee will step into the grantor’s shoes. There may be a situation in which the grantor does not determine specific, explicit conditions for the power of attorney to take effect, in which case the enduring power of attorney will take effect based on a professional medical opinion, which will determine that the grantor is unable to continue managing his life and make decisions on the matters for which the enduring power of attorney was granted.
Enduring Power of Attorney – in practice…
A lasting power of attorney is a legal procedure for all intents and purposes. Only an attorney who has been certified by the General Guardian is authorized to practice in this field, and provided that he has no personal interest in the power of attorney. A lasting power of attorney will be signed by 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 lasting power of attorney to enter into force, the deposit of the power of attorney will necessarily ensure that no guardian will be appointed for that person. The attorney is responsible for registering the application with the Ministry of Justice. From the date the lasting power of attorney is deposited with the General Guardian until the lasting power of attorney enters into force, a “reminder” will be sent to the appointee 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 changed/amended the power of attorney and several powers of attorney have been deposited on his behalf in the same In this regard, the last power of attorney that was deposited will be considered definitive. Our office is authorized by the Office of the General Guardian in the Ministry of Justice to issue a continuing power of attorney. Furthermore, our office believes that the importance of issuing a continuing power of attorney concerns every person, at any age, and from a sober view that the reality in which we live may change beyond recognition without prior notice. The issuance of a continuing 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 this will be appointed against his will and decide for him independently.
