Durable power of attorney

What is a durable power of attorney?

A durable power of attorney is a legal document that allows any adult (over the age of 18) explicitly to determine who will be the person who is authorized by him to make decisions on his behalf and to handle his medical and/or financial affairs whenever he will no longer be competent to decide and to care for himself; furthermore, he is entitled to determine how his life will be managed in the new way of life that is forced upon him when his judgment and his ability to make decisions were harmed.

Why does everybody need a durable power of attorney?

Every person is responsible for his life and for all his decisions during his adult lifetime. Those decisions, sometimes, are expressed in matters concerning wishes at the time of death, by writing a will which will arrange the affairs of property and the manner in which it will be divided after his death.

There are many cases in which a person’s health deteriorates quickly and suddenly, without these changes being foreseen. In such cases, the patient loses his capability to make decisions with regard to his physical needs and how they are to be handled; such rapid deterioration in a person’s health can be as a result of illness, a road accident, an accident at work, a sports accident and also, sometimes, through reaching old age.

Early planning allows the reduction of the uncertainty and prevention of disputes and difficult dilemmas among members of the family concerning medical treatment that will be administered to a person if he loses the capability to make his own decisions regarding his medical treatment and all matters concerning his property.

In October 2016, Amendment 18 of the Legal Competence of Guardianship Law, 5722, 1962, came into effect. This amendment is groundbreaking in all matters concerning a person’s right to appoint a guardian for his physical and property affairs, while he is of sound mind and can make a reasoned decision; this appointment will come into force in a pre-defined situation, for example, loss of consciousness, for any reason, brain death, dementia, Alzheimer’s disease, a stroke, etc.

In the past the appointment of a guardian, in a court, required a cumbersome legal process, and the filing of an annual report with the Administrator General.

The appointment of a person by granting him durable power of attorney is fundamentally different than the appointment of a guardian by the Court, which is a cumbersome legal process, requiring the filing of an annual report with the Administrator General. By granting a durable power of attorney, a person is entitled to determine a specific person who will administer his medical affairs, and/or his property, according to his wishes that have been determined in advance in the power of attorney, so that only when the power of attorney comes into force is the person thus empowered entitled to enter the shoes of the person who made the appointment.

The person who made the appointment, in most cases, will elect to grant power of attorney to a person on whom he can depend, and in whom he trusts, whether that person be a member of his family or a person with a specific specialty, a physician, lawyer, accountant, etc.

Our firm believes that it is important that every person should make a durable power of attorney, at any age, out of the realistic view that, the reality in which we live, might change, beyond recognition, without any prior warning. A durable power of attorney will inevitably bring about the implementation of the person’s wishes, as pre-determined by him, with regard to the choice of the person to whom the power of attorney is granted, who will attend to his affairs and will fulfill his wishes in accordance with the instructions that he will have given in advance. This situation is fundamentally different than that of a person who requires the appointment of a guardian, who will be appointed against his wishes, and will decide independently what is to be done for him.