What Is an Enduring Power of Attorney

Most of us prefer not to think about a time when we cannot make decisions for ourselves, but life shows that it can happen to anyone, at any stage of life: illness, an accident, dementia, which may also develop through gradual cognitive decline.

Without an arrangement made in advance, family members have to turn to the Family Court, in a very costly legal process, to have a guardian appointed for the relative who needs care of their property and medical needs.

This process takes time, takes control out of your hands, and imposes a reporting regime on the person appointed as guardian, to the Office of the Guardian General (in the Ministry of Justice), which supervises their activity.

An enduring power of attorney is meant to prevent this situation and give you control: you decide in advance who will act for you, and in which areas, with the option of going into detail and giving precise instructions to the person in charge of carrying out your wishes.

What is an enduring power of attorney

An enduring power of attorney is a document in which a person, the principal, appoints one or more others, the attorneys. The attorneys manage the principal's affairs if they can no longer do so themselves.

The arrangement is anchored in the Legal Capacity and Guardianship Law, and the document is prepared through a procedure that requires approval, and is registered and kept up to date with the Guardian General, ready for the day it is needed.

The difference from an ordinary power of attorney is fundamental. An ordinary power of attorney generally loses its effect once the principal loses legal capacity, which is exactly when it is needed most.

An enduring power of attorney is designed to fill that gap.

Which matters it can cover

The law allows the document to address three main areas, and you can choose one or all of them:

• Property matters. Managing bank accounts, paying bills, managing assets and investments, renting or selling property, on terms you set.
• Personal matters. Choice of place of residence, care and personal grooming arrangements (haircuts and clothing), and other day-to-day matters of a person's life, including hobby classes.
• Medical matters. Decisions about medical treatment. This area requires detailed instructions regarding examinations and treatments, and the law sets restrictions and special arrangements for it.

You can appoint one person for everything or different people for different areas, and you can set instructions, limits and preferences. This is one reason the document should be drafted carefully.

Attorneys may be authorised to act independently or jointly, according to the activation mechanisms set in the document.

Who can make one

The principal must be an adult with capacity (or, in the terms of the Legal Capacity Law, one who "understands the matter"), who understands the legal and practical meaning of the document and decides of their own free will. Capacity is examined when the document is prepared. Someone who has already lost capacity, for example a person with an advanced illness affecting the principal's cognitive abilities, may no longer be able to make one, so the right time is while it is still possible. There is no obligation to make an enduring power of attorney; it is entirely a personal decision for a person who wants to plan their life for the point at which they will need assistance.

How the document is prepared

An enduring power of attorney is prepared before a lawyer who is authorised to do so under the rules set out in the law, who has completed dedicated training and holds the accreditation. A list of accredited lawyers appears on the Ministry of Justice website.

The stages of the process include:

1. A conversation with the lawyer about the principal's aims, who will be appointed and which areas will be covered.
2. A check that the principal understands the legal and practical implications of the document and is acting voluntarily.
3. Signing the document before a lawyer who verifies the principal's signature.
4. Submitting the document for registration in the Guardian General's representatives system.

The procedure, forms and requirements may be updated, so check them at the time of preparation with a lawyer and on the Guardian General's website.

When it takes effect

It is important to understand that signing an enduring power of attorney does not automatically hand control to the attorney. As long as you are capable, you make your own decisions.

The document begins to operate only when the condition for its activation is met, as the principal defined it in the document. For example, a determination by the family doctor that you can no longer manage your affairs. You can define in advance what the condition will be and who will determine it.

Who it suits

It is relevant to almost every adult, and especially:

• Those with assets, a business or accounts that someone would need to manage.
• Parents of adult children who want to make things easier for them by giving clear instructions for the day they need assistance.
• Those whose spouse depends on them financially or medically.
• Anyone who wants to choose a particular person in advance rather than leave it to the discretion of the state or a court.
• Those who have had an illness or whose family has a history of dementia.

An enduring power of attorney and a will

The two documents complement each other but do not replace one another. An enduring power of attorney operates while a person is alive, when they are still living but unable to decide. A will takes effect after the testator's death. It is worth arranging both. See information about making a will in How to Write a Will in Israel.

Common mistakes when putting an enduring power of attorney into practice

• Delay. Waiting until the stage at which the document is needed has become too late and irrelevant, and as a result the document can no longer be made.
• An unconsidered choice. Appointing whoever is available to sign rather than whoever can be trusted for the specific matter, and not thinking about the consequences if the attorney cannot or does not want to fill the role. Consider appointing a substitute.
• Wording that is too general. Without clear instructions, the attorney is left with question marks about how they should act.
• Not updating. Families, assets and relationships change from time to time. It is worth revisiting the document every few years and examining whether its provisions are still relevant.
• Not telling anyone. If nobody knows the document exists, nobody will act on it.

How to start

The first step is simple: think about the person or people you would trust and in whose hands you would place the important choices and matters of your life. In which areas do you want them to act, and how? What matters to you that they know? With that list you can come to a conversation with a lawyer. The enduring power of attorney page has more about how we assist, and if you would like to begin, please contact us.

The information in this article is general and is not legal advice. Law and procedures are updated, and every case is examined on its own facts.