When a person ceases to be able to manage their own affairs, someone has to act on their behalf: pay bills, handle the bank account, make decisions about housing or the manner of treatment. In Israel there are two main routes: an enduring power of attorney that the person makes in advance, or appointing a guardian through the court (after the need to manage their affairs has arisen).
The difference between them centers on who will decide your future: you, or the court.
What is guardianship
Guardianship is regulated by the Legal Capacity and Guardianship Law (which also covers the enduring power of attorney). When a person reaches a state where they cannot take care of their affairs and has not arranged this in advance, a family member usually applies to the Family Court for a guardian to be appointed.
The court examines the application, hears the relevant parties and decides who will be appointed and with what powers. The guardian is supervised by the Office of the Public Guardian at the Ministry of Justice and, in many cases, must obtain approvals for certain actions and submit reports.
What is an enduring power of attorney
An enduring power of attorney is a legal instrument (under the 2016 amendment to the Legal Capacity and Guardianship Law), a document made while the signatory is legally competent, stating who will manage their affairs if they can no longer do so. It is made before an authorized lawyer and registered with the Public Guardian. A full explanation is in What Is an Enduring Power of Attorney.
Comparison
| Topic | Enduring power of attorney | Guardianship |
|---|---|---|
| Who decides who acts | You, in advance | The court, usually on a relative's application |
| When it is arranged | While you are competent | After the need has arisen |
| Influence over instructions | You can set detailed instructions and preferences | The court determines the powers |
| Process | Drafting with a lawyer and registration | A court proceeding |
| Supervision | As provided by law and by the document | Public Guardian and court |
The table describes general lines. The details and reporting requirements are set by law and may change, so they should be checked at the time of drafting.
Advantages of planning ahead
- Control: you choose the person you rely on instead of leaving the decision to a legal proceeding.
- Fewer proceedings for the family: relatives do not need to open a proceeding, apply to court and manage a process while dealing with the personal situation.
- Detailed instructions: you can write preferences in advance about housing, care and management of property.
When guardianship is still relevant
Guardianship is needed in a situation where no enduring power of attorney was made, when a person can no longer make one, or when there are matters the document does not cover. So even someone who has made an enduring power of attorney should review with a lawyer which subjects it includes.
How to choose
The decision is personal. Questions worth asking yourself:
- Whom would I want to manage my affairs if I cannot do so myself?
- Do I prefer that the decision be in my hands, or in a court's?
- Does my family agree among themselves, or is there a risk of dispute?
- In which areas do I want to set instructions: property, personal matters, medical matters?
On when the document takes effect, see When an EPOA Takes Effect.
Why capacity is the key point
An enduring power of attorney can be made only while you understand the meaning of the document and act of your own free will. Once capacity is impaired, guardianship may be the only route left. The general recommendation is therefore not to postpone the decision to a time when it is already too late, especially where there is a family history of illnesses that affect memory or decision-making. When to make the document is a personal decision.
What this looks like in practice
Without an enduring power of attorney, a family that discovers a relative can no longer manage their affairs has to act under pressure: gather medical documents, file an application, wait for a decision, and in the meantime, in most cases, it is not possible to access the bank account or handle property. The duration of the process varies from case to case and cannot be promised in advance.
With an enduring power of attorney made and registered in advance, the family and the attorney-in-fact already know what was decided, who was authorized and in which areas. Here too there are conditions and activation mechanisms set by law and by the document, so it is important to draft it carefully.
Frequently asked questions
Can an enduring power of attorney be changed? As long as the principal is competent, they can ask to amend or cancel it, following the procedure set by law (in most cases this means making a new enduring power of attorney). It is advisable to do so with a lawyer.
Does an enduring power of attorney replace a will? No. An enduring power of attorney concerns managing your affairs during your lifetime. A will concerns what happens to your property after death. See Writing a Will in Israel.
What if there is nobody to appoint? The arrangement suits a situation where a person entrusts their affairs to someone they rely on. Those who do not should consult a lawyer about the options available to them.
Can several people be appointed? Yes, more than one person can be appointed, with areas or powers divided between them, as set out in the document.
What to do now
If you are thinking about this for yourself, the first step is a conversation with a lawyer authorized to make enduring powers of attorney, to understand what suits you. If you are a family member of someone who is no longer competent, it is advisable to consult a lawyer to examine the options in your circumstances.
How we can help
The firm assists clients in making an enduring power of attorney, from the first conversation through updating and registering the enduring power of attorney in the online system. Learn more about our Enduring Power of Attorney practice or contact the firm.
This article is general information and is not legal advice. Every case has its own circumstances, and consultation is recommended before making decisions.
The information on this site is general and is not legal advice. Attorney advertising.
Related articles
- What Is an Enduring Power of Attorney
An enduring power of attorney lets you decide in advance who will make decisions for you if you cannot decide for yourself. What it covers, who can make one, who to appoint and when it takes effect.
- When an Enduring Power of Attorney Takes Effect
When an enduring power of attorney starts to operate: the difference between signing and activation, the activation conditions set in the power of attorney, who decides they were met, and what to define in advance.
- Writing a Will in Israel
A guide to writing a will in Israel: the types of wills, what makes a will valid, what happens without one, and the mistakes worth avoiding.