Enduring Power of Attorney
A new legal document has just been born in the Israeli legal system, with far-reaching implications for all of us. It shall go forth in the world and be called: the Enduring Power of Attorney (יפוי כח מתמשך).
Its place in the legal bookcase shall be between the Will (which comes into effect when a person passes away) and the Preliminary Medical Directives (which comes into effect re medical matters, when a person is classified as being terminally ill).
The Enduring Power of Attorney enables the person signing it to make decisions in advance, in regard to possible future situations in which the signer will not have the capacity to express his wishes and make those decisions.
Background: a regular Power of Attorney is a legal document in which a person ("the appointer") appoints another person to act on his behalf ("the proxy"). Once the appointer is incompetent, the Power of Attorney is no longer valid. Namely, once the appointer does not understand the significance of a Power of Attorney (i.e., due to deteriorating cognizance, unconsciousness, etc.), the Power of Attorney shall no longer be valid.
In medical matters, the Israeli legislator has considered medical conditions at the end of one's life (when one is defined as a Terminally Ill patient) and has drafted a medical document listing medical conditions, in regard to which the signer must decide whether to prolong life by artificial measures or not. Details on this document here. However, this document only applies to medical decision in regard to a Terminally Ill patient. Only in the Enduring Power of Attorney can a person express his or her wishes for medical treatment, when they cannot express their wishes but are not defined by law as being Terminally Ill.
Personal matters, such as care given to the appointer when he or she is no longer competent (i.e., home care with a foreign or Israeli caregiver or institutionalization in a long-term care ward, etc.), who to appoint as guardian, if at all, financial decisions (such as continued support of a family member) – can now be addressed, in the Enduring Power of Attorney.
Property matters: When a person cannot make competent decisions, a guardian can be appointed for him or her. The guardian is then subject to the supervision of the Ministry of Justice, including providing an annual report. However, the daily economic administration is given to the discretion of the guardian, who does not need to take into account the wishes of the person for whom the guardian was appointed. In the EPA, the appointer may give clear instructions as to what will be done financially with his or her property, when he or she can no longer make independent decisions on the subject.
In the EPA, the appointer empowers the proxy to act on his behalf and provides binding guidelines in any subject whatsoever. The EPA can be general or limited and can apply to property matters and/or medical matters and/or personal matters. The appointer is the one to decide when the EPA goes into force (i.e., pursuant to a medical opinion or pursuant to the discretion of a family member or when reaching a certain age, etc.). In addition, the legislator, understanding the uniqueness of this document, also determined the option that the proxy notify an additional person of the EPA going into effect and/or of the various decisions pursuant to the EPA, as an additional check on the proxy.
Who can be a Proxy?
The legislator, taking into account the danger of possible abuse of the EPA, determined that anyone who has a restricted bank account or is bankrupt, is ineligible to serve as a proxy for property matters. A person also cannot serve as a proxy for more than 3 people, unless they are family members.
When Can You Sign the EPA?
Anyone who is competent and at least 18 years old. If there is any doubt regarding his eligibility, a medical document must be attached to the EPA, indicating the cognitive condition of the appointer.
How do you sign the EPA?
The EPA is an online form, which must be filled out and verified by an attorney who was appropriately qualified. After filing it online, the original signed form must be deposited with the Ministry of Justice, which will be kept in the databases of the Ministry of Justice and will constitute a binding document which reflects the will of the appointer, even when he is no longer competent. Thus, for example, should someone file a motion to the court to appoint a guardian for the appointer, this will be brought to the attention of the Ministry of Justice which shall then act to appoint a guardian as per the appointer's wishes.
The EPA provides a response for anyone who is perturbed as to what shall be done with him and his affairs when he will no longer be able to make his own decisions. It would be wise to consider this option, while carefully determining the identity of the proxy and the contents of the EPA.