Medical Enduring Power of Attorney

When a person can no longer decide about their own medical treatment, someone else will have to decide for them. The question is who that person will be, and on the basis of which wishes. An enduring power of attorney lets you answer that in advance, while you are still capable. This article explains what the arrangement allows in the medical field and what to think about when drafting it. A general explanation appears on the Enduring Power of Attorney page.

Enduring power of attorney versus a power of attorney under the Terminally Ill Patient Law: what is the difference?

On medical matters it is important to know that, alongside the enduring power of attorney, Israel has another legal tool: a power of attorney under the Terminally Ill Patient Law (5765-2005).

The two are often confused, but they are different arrangements meant for different situations:

• Power of attorney under the Terminally Ill Patient Law: intended only for very specific end-of-life medical situations, where a person has an incurable illness and a life expectancy of no more than six months (or multi-system failure with a life expectancy of no more than two weeks). This document focuses on specific instructions about prolonging life, connection to machines, and life-prolonging treatment or withholding it.
• Medical enduring power of attorney: a much broader and more flexible tool. It takes effect in any situation in which the person cannot make decisions for themselves (for example due to dementia, an accident, a stroke or a temporary loss of consciousness), regardless of life expectancy. It allows you to appoint an attorney-in-fact to make everyday, routine or complex decisions, and to set instructions for ongoing medical care.

How do they work together?

The law allows the two tools to exist side by side. When drafting an enduring power of attorney, you can, and are encouraged to, set general, day-to-day medical instructions, and at the same time state expressly in the document that for terminal situations (as defined in the Terminally Ill Patient Law) the instructions signed on the Ministry of Health's dedicated form will apply. Combining the two correctly gives you comprehensive medical protection, covering both routine situations and the final stage of life, without creating legal conflicts between the documents.

An enduring power of attorney is not only about money

Many people assume an enduring power of attorney exists to manage a bank account and assets. In practice it can arrange three kinds of matters, together or separately:

• Property and finances. Managing accounts, assets and obligations.
• Personal matters. For example where you live, care and nursing arrangements, and day-to-day matters affecting quality of life.
• Medical treatment. Consenting to or declining treatment, and dealing with the treating team.

Someone who wants to arrange only the medical side can appoint an attorney-in-fact for that field alone, and appoint a different person, or nobody, for property matters. The decision is yours.

Attorney-in-fact versus advance directives

The two tools complement each other, and people are not always clear how they differ:

• An attorney-in-fact is a person. They decide in real time, according to the circumstances, when a question arises that you did not foresee.
• Advance directives are the text you write: what matters to you, what you want and what you do not want. They guide the attorney-in-fact and the treating team.

Directives without a person to interpret them may stay open to interpretation. A person without directives has to guess. Together they give the full picture. As noted at the start of the article, the law contains special arrangements for terminal illness, and the way they combine with an enduring power of attorney is tailored to your personal needs.

What to consider when writing instructions

There is no single wording that suits everyone. These are questions worth thinking about and discussing with the person you are considering appointing:

• Values and priorities. What matters more to you: prolonging life, avoiding suffering, staying at home as far as possible?
• Types of treatment. Some people want to set a position in advance on certain treatments; these should be worded clearly and with medical and legal guidance.
• Place of care. A preference for home care, a nursing setting or a particular institution.
• Information and sharing. Who receives information about your medical condition, and which family members should be updated.
• Flexibility. How much freedom to give the attorney-in-fact, and when they must act exactly as you wrote.

Write in plain language that a family member and a doctor will understand without complicated interpretation. Instructions that are too general may be of little use, and instructions that are too rigid may not suit circumstances you did not foresee.

Whom to appoint

A medical attorney-in-fact should be someone you trust, who knows you, who can withstand the pressure of difficult decisions, and who is willing to act on your wishes even when they would have decided differently. Consider:

• Whether they are available and live close enough.
• Whether they will be able to communicate on an ongoing basis with the medical team and the family.
• Whether to appoint a substitute in case the first cannot or will not act.
• Whether to speak with close family in advance so the decision does not surprise them. Choosing an attorney-in-fact will be covered in a separate article.

When the document starts to operate

As with any enduring power of attorney, signing does not transfer decisions to the attorney-in-fact. As long as you are capable of deciding, you decide for yourself. The document starts to operate only when the condition you set in it is met. More on this in When an Enduring Power of Attorney Takes Effect. In the medical field it is especially important to define who determines that the condition has been met, because these decisions cannot always wait.

And without a power of attorney

Without an arrangement in advance, when a person cannot decide, legal proceedings and the appointment of a guardian may be needed, and family members may be divided over who decides and what the person would have wanted. The difference between the two routes is explained in Enduring Power of Attorney or Guardianship. An enduring power of attorney lets you choose for yourself who will decide, and guide them.

Common mistakes

• Assuming it concerns only money. Someone who did not include the medical and personal fields may find that important decisions are left unanswered.
• Vague wording. "Decide whatever seems right to you" gives no real guidance.
• Not talking to the attorney-in-fact. A person who never heard your wishes will struggle to act on them.
• Not updating. Health, values and family change. Review the document every few years.
• Relying on directives without coordinating them with the power of attorney, and ending up with documents that contradict each other.

Frequently asked questions

Can I appoint an attorney-in-fact for medical matters only? Yes, the arrangement can be limited to one field, and different people can be appointed for different fields.

Is the medical team required to act according to the document? The exact consequences depend on the law, the circumstances and the wording. It is therefore worth drafting the document with a lawyer and making sure the attorney-in-fact knows what it says.

Can the instructions be changed? Generally yes, as long as you are capable. A change is made through a formal procedure.

Getting started

The first step is not legal: think about what matters to you and talk to the person you are considering appointing. After that the document can be drafted accordingly. To discuss your case, you can contact us. For an overview, see also What Is an Enduring Power of Attorney.

This information is general and is not legal or medical advice. The law and procedures change, and each case is examined on its own facts.