Enduring Power of Attorney — Definition, Legal Significance and Professional Guidance | Attorney Roziel Amir

What is an Enduring Power of Attorney and Why is it Essential in Israel?

An enduring power of attorney is an important and practical legal tool that enables a person with full capacity (the grantor) to transfer legal powers to another person (the attorney-in-fact) even in a situation where the grantor has lost capacity. Unlike a regular power of attorney, which terminates when the grantor loses capacity, an enduring power of attorney remains valid even after the grantor enters a state of incapacity — whether due to dementia, Alzheimer's disease, stroke, severe injury, or any other medical condition affecting their ability to make decisions.

In Israel, enduring power of attorney is regulated by the Enduring Power of Attorney Law, 5758–1998, and constitutes a vital part of responsible family planning. It enables a person to maintain control over personal, financial, and medical decisions even when unable to express their wishes independently, and saves families substantial legal costs associated with court proceedings to appoint a guardian.

Why is this important now, in your life?

Many people assume that loss of capacity only happens at an advanced age. In reality, a traffic accident, sudden illness, or complicated surgery can affect capacity at any age. If you do not have an up-to-date enduring power of attorney in place, and something happens to you, your family will need to file an application with the family court to appoint a guardian — a process that is lengthy, expensive, and public. During this time, there will be no one authorized to make decisions regarding your medical care or your assets.

An enduring power of attorney gives you complete control: you choose who will be responsible for your decisions, in which matters, and under what conditions. It is a tool of personal empowerment and dignity.

Precise Legal Definition: What is a Lasting Power of Attorney?

In legal terms, a Lasting Power of Attorney is a legal document in which the grantor (the person with full legal capacity) transfers legal powers to the attorney-in-fact (their representative), with the condition that these powers remain valid even after the grantor loses capacity. This is a critical difference from an ordinary power of attorney, which is automatically revoked when the grantor loses capacity.

In Israel, a Lasting Power of Attorney can be granted in two main areas:

• Power of Attorney for Property and Financial Matters — The attorney-in-fact is authorized to manage assets, sign contracts, manage bank accounts, pay bills, manage mortgages or loans, and conduct real estate transactions, under the conditions set by the grantor.
• Power of Attorney for Healthcare and Medical Matters — The attorney-in-fact is authorized to make decisions regarding medical treatments, examinations, medications, surgeries, and receive medical information, in accordance with the grantor's instructions.

Every Lasting Power of Attorney must be executed in writing, signed before witnesses or a notary public, and this documentation is kept by the grantor and typically also in a copy with an attorney or in a family archive.

Essential Difference: Ordinary Power of Attorney vs. Lasting Power of Attorney

An ordinary power of attorney is automatically revoked the moment the grantor loses capacity (for example, falls into a coma or is diagnosed with dementia). This means the attorney-in-fact can no longer make decisions on your behalf, and decisions will be transferred to the court. In contrast, a Lasting Power of Attorney remains valid specifically at the time of loss of capacity — this is its strength. As long as the grantor has capacity, they can revoke or modify the power of attorney at any time. Once they lose capacity, they cannot do so, but the attorney-in-fact can continue to act on their behalf.

When Do You Need a Durable Power of Attorney? Real Family Scenarios

A durable power of attorney is not just for seniors. People of all ages should consider it:

Young Couples and Families

If you are between 30–50 years old with dependents relying on you, a durable power of attorney ensures that if something happens to you (an accident, sudden illness), your family members will be able to manage your assets, access your bank account to pay bills, and make medical care decisions without legal delays.

Business Owners

If you own a business or are a partner in a company, a durable power of attorney can designate who will be able to manage your business or sign essential contracts if you are unable to. This protects business continuity and your family's income.

Real Estate Property Owners

If you own a house, apartment, or other real estate property, a durable power of attorney can authorize your agent to manage the property, collect rent, pay taxes and management fees, or even sell if necessary. This is especially vital if the property generates income or is essential for family support.

People with a Family History of Cognitive Diseases

If your family history includes cases of Alzheimer's, dementia, or other neurological diseases, a durable power of attorney is a prudent step in advance planning. You can set your instructions now, while you have full capacity, and protect yourself in the future.

Single People (Individuals Without Close Family Members)

If you live alone or do not have close relatives, a durable power of attorney can give a close friend, an experienced attorney, or another professional entity the authority to handle your affairs. This ensures you will not be left without any legal support.

The Difference Between Continuous Power of Attorney and Legal Guardianship

These two concepts are related yet distinct, and it is important to understand the difference:

In summary: Continuous power of attorney is a tool of self-control and advance planning. Guardianship is a forced legal remedy when you lack capacity and do not have a continuous power of attorney in place.

The Practical Process: How to Create a Durable Power of Attorney in Israel?

The process of creating a durable power of attorney is relatively straightforward, but requires legal care:

Step 1: Consultation with an Experienced Attorney

In an initial meeting with an attorney specializing in family law and estate planning, you can discuss your specific needs. The attorney will help you decide which powers you wish to transfer (healthcare, financial, or both), who will be your agent, and under what conditions. This is also the time to discuss complex scenarios — for example, what happens if your primary agent cannot act, or if there are multiple agents who need to make decisions together.

Step 2: Document Drafting

The attorney will prepare your durable power of attorney in accordance with the requirements of the Durable Power of Attorney Law, 5758–1998. The document will include your details, your agent's information, the scope of authority, any conditions (if applicable), and signatures. You must be clear and specific — for example, not just "financial powers," but "authority to manage bank accounts, sign contracts up to NIS 100,000, and not to sell real property without approval from another family member."

Step 3: Signing Before Witnesses or a Notary

A durable power of attorney must be signed before two witnesses or before a notary public. The witnesses (or notary) attest that you are of sound mind, that you understand the meaning of the document, and that you are signing with your consent. This ensures that it cannot be claimed in the future that you signed under duress or by mistake.

Step 4: Notification of the Agent

You or your attorney will notify your agent that they have been appointed, explain their responsibilities, confirm their agreement, and provide them with a copy of the document. Clear communication at this stage prevents future conflicts.

Step 5: Secure Storage of the Document

Keep copies of your durable power of attorney in safe locations: with your attorney, in a safe deposit box at your bank, and with your agent. In an emergency, you will be able to present the document quickly to a hospital, bank, or other authority.

Step 6: Periodic Review

Review your durable power of attorney every 5–10 years, or whenever something changes in your life (marriage, divorce, birth of a child, death of an agent, change in assets). Updating ensures that the document still reflects your wishes and current needs.

Common Mistakes and How to Avoid Them

In our work with clients, we have seen several recurring errors that can weaken or render a durable power of attorney useless:

Mistake 1: Unclear Drafting of Powers

If the power of attorney merely states "financial powers" without detail, disputes may arise in the future about exactly what the attorney-in-fact can do. Can he sell the house? Can he take out a loan in your name? Clear drafting — "powers to manage bank accounts, pay bills and debts, invest in an investment portfolio, but not to sell real estate assets without written approval of another family member" — prevents problems.

Mistake 2: Failure to Update an Outdated Power of Attorney

If you signed a durable power of attorney 15 years ago and it is still valid, but your assets, family, or attorney-in-fact have changed, it may no longer reflect your current reality. Periodic updates are essential.

Mistake 3: Choosing an Attorney-in-Fact Without Explicit Consent

If you choose a family member to be your attorney-in-fact without discussing it with him first, he may object when the time comes, or be unprepared for the responsibility. An explicit conversation beforehand ensures he agrees and understands the role.

Mistake 4: Signing Without Witnesses or Notarization

A durable power of attorney signed without witnesses or notarization may be delayed or not recognized in the future. Always sign before witnesses or a notary — this is essential for legal validity.

Mistake 5: Failure to Notify the Attorney-in-Fact or Other Family Members

If you do not notify the attorney-in-fact that he is the attorney-in-fact, or if you do not inform other family members of the existence of the power of attorney, there may be confusion, suspicion, or family conflict when it is invoked. Transparency in advance avoids drama in the future.

Mistake 6: Insecure Storage of the Document

If you keep your durable power of attorney only in a single copy at home and it is lost in a fire or theft, you will need to recreate it. Keep copies in multiple secure locations — with your lawyer, in a safe deposit box, and with your attorney-in-fact.