Enduring Power of Attorney — Legal Protection for Your Future | Attorney Rosiel Amir

What is an Enduring Power of Attorney and Why is it Important?

An Enduring Power of Attorney is a legal document that allows you to grant powers to another person — an attorney-in-fact — to make decisions on your behalf in personal, medical, and financial matters, even if you lose legal capacity in the future. Unlike a regular power of attorney, which becomes void upon loss of capacity, an enduring power of attorney remains in effect precisely when you are unable to make decisions yourself.

This is a critical protection tool for everyone, especially those at risk of losing capacity due to serious illness, old age, accidents, or other medical conditions. Through an enduring power of attorney, you retain control over important decisions in your life — only they are made by a person you have chosen yourself, rather than by a court or the Public Guardian for persons who have lost capacity.

How Does an Enduring Power of Attorney Differ from a Regular Power of Attorney?

• Validity After Loss of Capacity: An enduring power of attorney remains valid even when you lose capacity, whereas a regular power of attorney terminates immediately.
• Personal Choice: You determine who will be your attorney-in-fact and what their powers will be, not a court.
• Privacy and Respect: You maintain dignity and privacy in difficult medical situations, instead of being dependent on decisions made by government authorities.
• Flexibility: You can define limited powers (for example, only in medical matters or only in financial matters) or full powers.

Who Should Have an Enduring Power of Attorney?

Any person aged 18 or older with full legal capacity can create an enduring power of attorney. It is particularly relevant for:

• Elderly people (50+) who fear losing capacity due to neurological diseases such as Alzheimer's or dementia.
• People with chronic or progressive medical conditions (cancer, severe diabetes, heart disease).
• People who want to ensure that medical decisions are made by a person of their choosing, in accordance with their values.
• Business owners who are concerned about disruption to the management of their assets or obligations upon loss of capacity.
• Parents who wish to ensure there will be someone to care for their medical and financial needs when they can no longer do so themselves.

Types of Enduring Power of Attorney

An enduring power of attorney can be created in three main categories:

• Medical Power of Attorney: Allows the attorney-in-fact to make medical decisions on your behalf, including consenting to treatment, refusing treatment, or making end-of-life decisions.
• Financial Power of Attorney: Grants authority to manage bank accounts, pay bills, sell or purchase assets, and manage investments.
• Personal Power of Attorney: Includes decisions on matters such as residence, personal care, and execution of will provisions.

Often, a person creates more than one type of enduring power of attorney, and may grant different powers to different people — for example, one attorney-in-fact for medical matters and another for financial matters.

Process for Creating a Durable Power of Attorney in Israel

Creating a durable power of attorney in Israel requires compliance with specific legal requirements to ensure full legal validity. The process is not complicated, but it requires attention to detail and legal precision.

Process Steps

1. Legal Capacity Verification: You must be at least 18 years old, possess full legal capacity, and not be under court guardianship. It is important to emphasize that if you have already lost capacity, you will not be able to create a durable power of attorney — therefore, it is essential to do so in time.
2. Selection of Attorney-in-Fact: You must choose a person or persons you can trust completely. The attorney-in-fact must be willing to accept the responsibility and be over 18 years old. Many people choose a spouse, son or daughter, or a close friend.
3. Definition of Powers: You must decide precisely which powers you will grant to the attorney-in-fact. This can be everything (full power) or only some powers. You must also decide whether the power of attorney will be effective immediately or only when you lose capacity.
4. Document Preparation: The power of attorney must be prepared in Hebrew, in written and clear form. The document must contain your full details, the details of the attorney-in-fact, the powers granted, and your signature.
5. Witness Requirements: A durable power of attorney must be signed before two witnesses or before an attorney. The witnesses (or attorney) must be at least 18 years old, possess legal capacity, and have no personal interest in the matter.
6. Court Approval (Optional):
7. Registration and Preservation: After signing the document, it is recommended to keep an original copy and distribute copies to your attorney-in-fact, your physician, and your bank. You may also register the power of attorney with the Family Court to add an additional layer of protection.

Important Legal Requirements

In Israel, a durable power of attorney is regulated primarily by the Family Matters Arrangements Law, 1980, and court precedent. The document must be:

• Written in Hebrew (or in a certified translation if originally in another language).
• Signed by you in the presence of two witnesses or an attorney.
• Clear and unambiguous — the document must clearly define the powers granted.
• Free from coercion or undue influence — you must create it of your own free will, without pressure from anyone.

It is important to note that, generally, an expert attorney will ensure that all legal requirements are met and will maintain the correct legal wording to save you trouble in the future.

Cost and Timeline

The cost of preparing a durable power of attorney varies depending on the complexity of the document and the number of types of powers of attorney you are creating. Typically, this cost ranges from 500 NIS to 2,000 NIS, depending on complexity and additional services (such as registration with the court). The process usually takes between one to three weeks from the initial consultation to final signature.

Advantages and Disadvantages — What You Need to Know

Advantages of Continuing Power of Attorney

• Personal Control: You choose who will make decisions on your behalf, not a court. This is particularly significant when it comes to deep medical or financial decisions.
• Privacy and Dignity: Instead of being dependent on government authorities' decisions, you maintain your privacy and dignity in a difficult situation.
• Avoidance of Court Proceedings: There is no need for lengthy and costly legal proceedings to appoint a guardian in court — you have already determined this in advance.
• Flexibility: You can define partial or full powers, and also decide whether the power of attorney will take effect immediately or only upon loss of capacity.
• Peace of Mind: Knowing that important decisions will be made in accordance with your values and wishes, you can live with peace of mind.
• Reduction of Family Disputes: With a clear continuing power of attorney, you can avoid conflicts between family members over important decisions.

Disadvantages and Risks

• Risk of Exploitation: If the attorney-in-fact is not trustworthy, they may use their powers for their own benefit, not yours. This is a significant risk, which is why it is essential to choose someone you trust completely.
• Lack of Oversight: After you lose capacity, it is difficult to oversee the attorney-in-fact. If they do something improper, it may be difficult to prove it later.
• Legal Costs: If it becomes necessary to challenge the decisions of the attorney-in-fact in court, this can be expensive and protracted.
• Misunderstandings: If the document is not sufficiently clear, or if powers are defined inaccurately, misunderstandings may arise in the future.
• Changed Circumstances: If circumstances change (for example, the attorney-in-fact relocates abroad or can no longer serve), it may be difficult to update the power of attorney.

How to Reduce Risks

• Choose Your Attorney-in-Fact Wisely: Select a person you trust completely, who has good judgment, and with whom you share common values on important matters.
• Define Powers Clearly: Do not grant excessive powers. If you only need medical power of attorney, do not grant financial powers.
• Maintain a Clear and Unambiguous Document: Ensure the document is detailed, clear, and includes specific instructions on important matters.
• Notify Relevant Bodies: Share the power of attorney with your doctor, your bank, and your family, so they know it exists.
• Consider Court Registration: Court registration adds a layer of protection and ensures the document will be officially recognized.
• Review Periodically: If you still have capacity, periodically review whether the power of attorney still suits your current circumstances.

Comparison: Durable Power of Attorney vs. Court-Appointed Guardian

Conclusion: A durable power of attorney is an ideal tool for those who want personal control, privacy, and cost savings on legal fees. However, it requires careful selection of an attorney-in-fact and clear definition of powers. If you are concerned about abuse or the incompetence of your attorney-in-fact, court guardianship may be the better choice, despite higher costs and longer timelines.