Durable Power of Attorney for Medical Decisions | Attorney Rozil Amir

What is a Continuing Power of Attorney for Medical Matters?

A continuing power of attorney for medical matters is a legal document that allows you to grant another person (attorney-in-fact) the authority to make decisions on your behalf regarding medical matters, even if you lose your decision-making capacity in the future. Unlike a regular power of attorney that becomes void when you lose mental capacity, a continuing power of attorney remains valid precisely when you need it most.

In the Israeli legal system, a continuing power of attorney for medical matters is regulated by the Continuing Power of Attorney Law, 5758-1998. The document allows you to predetermine who will be able to decide on the continuation of medical treatment, surgeries, medications, and other treatments when you are unable to do so yourself.

This is an essential legal tool for every person, regardless of age, who wishes to maintain control over their medical future and ensure that decisions are made by someone you trust.

Why is a Continuing Power of Attorney for Medical Matters Important?

No one can predict what the future will hold. Diseases, accidents, or unexpected health conditions may affect your ability to decide on medical treatment. Without a continuing power of attorney:

• Your family will not be able to decide on your behalf — even if they are your closest relatives, they will not have the legal authority to make medical decisions for you.
• A court may appoint a guardian — if you lose mental capacity, a family court may appoint a guardian in a prolonged and expensive proceeding, even if it is not someone you would have chosen.
• Medical decisions may be delayed — without clear legal authority, the medical team may hesitate to make vital decisions during critical times.
• Your values will not be translated into action — if you do not document your advance directives, the treatment may not reflect your values and wishes.

Who Needs a Continuing Power of Attorney for Medical Matters?

Any adult in Israel can create a continuing power of attorney for medical matters. However, there are groups who often have a more urgent need:

• People with chronic health conditions — diabetes, heart disease, cancer, or other diseases that may affect decision-making capacity.
• People aged 60 and over — higher risk of stroke, dementia, or other neurological diseases.
• People facing major surgery — to be prepared for a situation where you cannot decide during the recovery period.
• People with an extended or contentious family — when there are concerns that there will be disagreement over medical decisions.
• Single people or those without close family — to ensure that someone you choose will be able to act on your behalf.
• People with specific religious or personal beliefs — to document your preferences regarding treatment (for example, blood transfusions, end-of-life care).

What Can You Include in a Continuous Power of Attorney for Medical Matters?

A continuous power of attorney for medical matters allows you to document detailed instructions on almost every aspect of your medical treatment. When preparing the document, you can specify:

1. Selection of the Medical Attorney-in-Fact

You can appoint one or more individuals who can make decisions on your behalf regarding medical matters. This is typically a close family member, trusted friend, or another person you rely on. You can also appoint an alternate (someone who can decide if the primary attorney-in-fact is unable or unwilling to do so).

2. Types of Medical Decisions

You can specify exactly which medical decisions the attorney-in-fact may make:

• Decisions regarding routine treatment (examinations, daily medications).
• Decisions regarding surgery and major treatments.
• Decisions regarding end-of-life care (withholding further treatment, "do not resuscitate" orders).
• Decisions regarding organ or tissue donation.
• Decisions regarding medical research or clinical trials.

3. Specific Advance Directives

You can document your values, beliefs, and preferences regarding medical treatment:

• Religious or statutory beliefs (for example, kosher supervision, blood transfusion, or religiously-oriented treatment).
• Quality of life — what is meaningful to you in life and how you would want treatment to lead to that.
• End-of-life treatment — whether you want life-sustaining treatment at any cost, or if there are circumstances where you would prefer to avoid it.
• Location of treatment — whether you prefer a specific hospital, or home care if possible.

4. Limitations and Exceptions

You can also define what the attorney-in-fact cannot do:

• Withhold specific treatment that you always want to receive.
• Consent to treatment that you fear or object to.
• Make decisions regarding non-medical treatment (for example, financial or family decisions).

5. Post-Mortem Instructions

You can also direct the attorney-in-fact regarding the treatment of your body after death, such as:

• Donation of organs or tissues.
• Treatment of your body in accordance with religious beliefs (burial, cremation, etc.).
• Medical research in which your body may participate.

The Difference Between Continuous Power of Attorney for Medical Matters and Guardianship

Often, people confuse continuous power of attorney for medical matters with guardianship. Although both relate to making decisions on your behalf when you cannot, they differ significantly:

In Short: Continuous power of attorney is yours — you choose who will help you and what they can do. Guardianship is of the court — the court decides who will help you when you can no longer decide for yourself.

Legal Requirements and Validity of Durable Power of Attorney for Medical Matters

For a durable power of attorney for medical matters to be valid in Israel, it must comply with specific legal requirements. These are defined in the Durable Power of Attorney Law, 5758-1998, and its regulations.

Requirements included:

• Mental Capacity: You must have mental capacity at the time of signing. This means you must understand the nature and significance of the power of attorney you are creating.
• Handwritten or Printed: The document may be handwritten or printed, but it must be signed by you.
• Signature: You must sign the document yourself. If you cannot sign (for example, due to paralysis), someone else may sign on your behalf in your presence and with your consent.
• Witnesses or Legal Authority: Generally, a durable power of attorney must be signed before two independent witnesses, or before a legal authority (such as a court registrar, attorney, or notary). These witnesses must have mental capacity and must not have an interest in the matter.
• Language: The document must be in Hebrew, or if it is in another language, it must be translated into Hebrew by a certified translator.
• Clear Details: The document must clearly state your name, the name of the attorney-in-fact, and your instructions or restrictions.

Additional Requirements for Medical Matters:

In addition to the general requirements, a durable power of attorney for medical matters must contain:

• Explicit Declaration: The document must clearly state that it is a durable power of attorney for medical matters, and that it remains valid even if you lose mental capacity.
• Types of Decisions: The document must specify which types of medical decisions the attorney-in-fact will be able to make.
• Advance Directives: If you have specific instructions regarding medical care (for example, "do not resuscitate", a certain type of treatment), there must be a place to document these.
• Date: The document must be dated.