What is a durable power of attorney?

A durable power of attorney is a legal tool that allows every person of legal age (over 18 years) who is not legally incompetent (sound of mind and faculties) to determine and to appoint another person that he or she trusts (and even a number of people jointly and severally) to handle all his or her affairs, or any of them, including matters that pertain to any medical treatment that may be necessary, such person’s personal affairs and such person’s financial affairs, in times that such person is incapable of making decisions in these matters.

It is important to make a durable power of attorney at any age, just like a will that frequently opens with the words “for a person does not know the day of his judgment…”, in the same way we do not know when, God forbid, we may find ourselves unable to make decisions for ourselves, be it temporarily or permanently, for any reason whatsoever.

A durable power of attorney may be made and signed only by an advocate that completed special training provided by the office of the General Guardian at the Ministry of Justice, and such attorney may not have a personal interest in the power of attorney. 

After making the document and signing it before such advocate, the durable power of attorney will be deposited with the General Guardian at the Ministry of Justice.

These actions will be carried out before the same advocate that was authorized, by online means and pursuant to the guidelines published by the Ministry of Justice for the advocates that were authorized for that purpose.

What is the big advantage of making a durable power of attorney (what might happen if I do not make a durable power of attorney and, God forbid, become unable to understand and to manage my own affairs)?

The advantage of a durable power of attorney is that it can replace the proceedings set forth in applicable law for the appointment of a guardian by the Family Court.

That is to say, until 2016, when the Legal Capacity and Guardianship Law was amended in Amendment 18, if a person lost physical capacity and/or mental/cognitive capacity the family members and relatives of such person were forced to act urgently by submitting an urgent petition to the Family Court to appoint one among them as guardian to the body and/or property of such person (and in more than one occasion a dispute arises among the family members who should be appointed as guardian to the property of such person and who will make the decisions in matters pertaining to such person’s property and monies, which might lead to a long and exhausting proceedings in the Family Court).

Beyond the fact that submitting a petition to appoint a guardian involves a legal procedure, of filing a petition including many documents including a medical opinion, a report by a social worker, the consents of the other family members by way of a certified affidavit for the appointment of the family member that wishes to be appointed as guardian. In addition, the guardian is subject to the supervision of the supervision department in the General Guardian in the Ministry of Justice and accordingly the appointed guardian is required to file from time to time a status report as to its actions, as to the inventory of assets and properties of the person he or she serves as guardian and so forth.

Furthermore, while the durable power of attorney provides a person the entitlement and the power to select who will handle his or her affairs, in whole or in part, and in what manner, while providing express instructions by way of preliminary guidelines to the attorney to act one way or another (for example how to invest his or her funds, how to manage the assets at the property level and up to where such person wishes to reside in inspecting the management of his or her personal affairs for example), the well-established guardianship institution that enters into force only after it has been determined that a person is unable the handle his or her own affairs, does not leave, de facto, such person any choice and impairs, sometimes severely, the entitlement of a person to live and plan such person’s life according to the person’s wishes and own choices.

By way of a durable power of attorney a person may appoint a person that he or she trusts most to handle his or her affairs when such person cannot handle them by himself or herself, and even to determine whether the attorney will be subject to the supervision of the General Guardian or not (and spare the authorized family member the hassle and aggravation of a procedure that may be cumbersome and exhausting). To determine that such person appoints two attorneys, or more, jointly and severally, and even to determine the way that they will make decisions, who will they notify and with whom they will consult prior to making any decisions pertaining to his or her affairs.

That is to say, the durable power of attorney highlights and respects the wishes of the person, including such person’s entitlement to elect who will handle his or her affairs, a person that is personally close and trustworthy, as distinguished from a situation where the court determines and rules who will be authorized to act on behalf of that person in the framework of a petition to appoint a guardian at the request of a third party.

Another important advantage of a durable power of attorney is that after the appointor passes away (after the long years of his or her life), the attorney must transfer the assets of the appointor being handled by it to the successors or to the estate administrator. Nevertheless, for a period of 90 days of the date of death, an attorney in matters of property may continue to handle certain matters of property, including payments for services provided to the appointor during his or her lifetime and to pay reasonable expenses for burial and funeral arrangements, as well as continue to manage a leased asset or an asset that requires ongoing care. This prevents an “interim period” in which these matters are not being handled by anyone.

Can I revoke a durable power of attorney after it was signed and deposited with the General Guardian?

Yes!  Just as you may change a will and redraft it you may revoke / change and/or redraft a durable power of attorney.

The deposit of a durable power of attorney is flexible and may be changed or updated through the lifetime of the appointor pursuant to the provisions set forth in applicable law. Material changes may be carried out by making a new durable power of attorney and by repeating the process. If the changes desired are merely “technical” this may be carried out by way of filling out a “details update” form and delivering it to the General Guardian in the Ministry of Justice.

The advocate that makes the power of attorney will notify the appointor, inter alia, as to all the legal consequences of such power of attorney, will verify that the appointor understands the implications of granting a power of attorney, its purposes and its consequences, and that the power of attorney was freely provided by the appointor without, God forbid, any duress or undue influence and without abuse of distress or weakness.

Advocate Meirav Plada was certified by the General Guardian in the Ministry of Justice to make, instruct and certify a durable power of attorney, participated in the training for a durable power of attorney and has extensive experience in making and certifying durable powers of attorney.

The above is not legal advice and is provided as general information only. It is recommended to obtain personalized advice by contacting our office. You may provide us with your details in the “contact us” page and we will contact you soon.

מירב פלדה עו"ד
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