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

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

An Enduring Power of Attorney is a vital legal instrument that enables you to transfer powers to a trusted representative — an attorney-in-fact — who will be able to manage your personal, medical, and financial affairs in the event you lose legal capacity or cognitive ability. Unlike an ordinary power of attorney, an enduring power of attorney remains valid even after you lose your ability to make decisions, which is why it is so important.

In Israel, when a person loses legal capacity — whether due to dementia, Alzheimer's, an accident, or another illness — a family court may appoint a guardian through a legal ruling. This process can be lengthy, expensive, and public. An enduring power of attorney allows you to decide in advance who will manage your affairs, within a framework you establish, without requiring court intervention.

Who Needs an Enduring Power of Attorney?

Every adult with legal capacity should consider an enduring power of attorney. This includes:

• Married couples and those engaged to be married — so the spouse can manage shared assets and family obligations.
• Parents with minor children — to ensure someone is prepared to care for the children's education and assets if a tragedy occurs.
• Business owners — to ensure the continued operation of the business in trusted hands.
• Owners of substantial assets — to protect your estate and avoid court intervention.
• Elderly individuals and anyone celebrating a significant birthday — to prepare for the possibility of diminished capacity.

Differences Between an Enduring Power of Attorney and an Ordinary Power of Attorney

An ordinary power of attorney becomes void if you lose capacity. This is a critical distinction. An enduring power of attorney, by contrast, is specifically designed to keep the attorney-in-fact's powers intact even when you cannot make decisions. Naturally, an enduring power of attorney requires meticulous documentation and signature before a witness (or witnesses) to prove you have capacity at the time of execution.

Types of Continuing Powers of Attorney in Israel

In Israel, continuing powers of attorney can be issued in three main categories, each with distinct legal provisions and unique content:

1. Personal and Medical Continuing Power of Attorney

This category allows the attorney-in-fact to make medical decisions on your behalf when you are unable to do so. This includes decisions about treatments, surgeries, medications, and in complex cases—decisions regarding the termination of life-sustaining treatment. In Israel, continuing medical power of attorney must be anchored in the provisions of the Powers of Attorney Law empowering the treating physician and the attorney-in-fact to work in collaboration. This is one of the most important decisions you can make, as it directly affects your health and life.

2. Financial and Property Continuing Power of Attorney

This category authorizes the attorney-in-fact to manage your assets, bank accounts, investments, real estate, and insurance policy balances. This is essential if you have a mortgage, investments, or complex assets. A continuing financial power of attorney allows uninterrupted payment of bills, renewal of contracts, sale or purchase of assets, and management of your financial affairs.

3. General Personal Continuing Power of Attorney

This includes decisions about residence, personal care, choice of facilities (if required), and general management of your day-to-day life. This category is less extensive than the first two but is important to ensure that someone you choose can decide on your quality of life.

Process of Issuing a Continuing Power of Attorney — Step by Step

Issuing a continuing power of attorney is not a complicated process, but it requires attention to detail and legal diligence. Here is the typical procedure:

Step 1: Initial Consultation and Planning

You meet with your attorney to discuss your needs, circumstances, and who you want as your attorney-in-fact. At this stage, we listen to your story and understand your family dynamics, your assets, and your medical concerns. This is also the time to explain the legal implications of issuing a continuing power of attorney and the responsibilities of the attorney-in-fact.

Step 2: Selection of Type of Power of Attorney and Scope of Authority

You decide whether you want a personal, medical, financial, or combined power of attorney. You also determine whether the attorney-in-fact can exercise the powers immediately ("springing" continuing power of attorney) or only if you lose competence ("delayed" continuing power of attorney).

Step 3: Document Drafting

Your attorney drafts the continuing power of attorney document in precise legal language, ensuring compliance with all legal requirements. The document must be clear, unambiguous, and leave no room for misinterpretation.

Step 4: Signing Before Witnesses

You sign the document before witnesses (typically two). The witnesses must be over 18 years of age, not be relatives of the attorney-in-fact, and must confirm that you have legal capacity at the time of signing. This is a critical step, as without witnesses, the document may be invalid.

Step 5: Safekeeping and Documentation

The signed document is kept in a secure manner. You should inform the attorney-in-fact of the document's existence (if desired), and consider depositing a copy with your attorney, bank, or in your possession.

Durable Power of Attorney and Family Rights

Durable power of attorney is closely linked to family law in Israel. When dealing with a married couple, spouses, or a family with minor children, durable power of attorney becomes even more essential. Here are several related scenarios:

Durable Power of Attorney Within Marriage

When you are married, your spouse may be the natural candidate to serve as your attorney-in-fact. However, this should be considered carefully, particularly if there are disputes or laws concerning shared assets. A durable power of attorney for a spouse must include clear instructions regarding the management of shared assets, joint accounts, and joint liabilities.

Durable Power of Attorney and Minor Children

If you have minor children, durable power of attorney should include instructions regarding their upbringing, education, and the appointment of a guardian in case of an emergency. This is closely related to guardianship law and custody laws in Israel.

Durable Power of Attorney and Divorce

If you are in the process of divorce or negotiating a family settlement, durable power of attorney may affect alimony arrangements, custody, and property division. It is very important to inform your attorney about the existence of a durable power of attorney during divorce negotiations.

Durable Power of Attorney and Financial Agreements

If you have a financial agreement (a prenuptial agreement or an agreement during marriage), durable power of attorney must be consistent with its terms. Your attorney will ensure that there are no contradictions between the various documents.

Costs and Timeframes

The cost of issuing a continuing power of attorney depends on the scope of work and the complexity of your situation. Generally:

• Simple continuing power of attorney (personal or medical only): Lower cost range, as the document is less complex.
• Complex continuing power of attorney (financial + medical + personal, with significant assets): Higher cost due to the need for precise and meticulous drafting.
• Coordination with comprehensive family planning (wills, financial agreements, and continuing power of attorney): There may be a discount as all work is integrated.

Processing time is typically several weeks, depending on the law firm's workload and how quickly you respond to questions.

Do Not Forget: Periodic Updates

A continuing power of attorney issued many years ago may become outdated if significant circumstances change (for example, the attorney-in-fact moves abroad, or you wish to modify the instructions). It is recommended to update or review the document every 5-10 years, or when a significant life event occurs.

Common Risks and How to Avoid Them

When it comes to a continuing power of attorney, there are several risks that are important to be aware of:

Selecting an Unsuitable Attorney-in-Fact

One of the greatest risks is choosing an attorney-in-fact who cannot or does not want to handle the responsibility. This can lead to poor decisions, mismanagement of assets, or even exploitation. We encourage you to discuss in depth with the candidate before granting them power of attorney.

A Document That Is Unclear or Does Not Meet Legal Requirements

If a continuing power of attorney document is not drafted correctly or not signed properly, a court may declare it void. This can lead to the need for a court-appointed guardian, which is precisely what you wanted to avoid.

Failure to Fully Disclose Assets

If you do not clearly disclose all of your assets in the continuing power of attorney, there may be confusion later about what the attorney-in-fact is permitted to manage. This can lead to family and legal disputes.

Failure to Update Following Changes in Your Life

If you divorce, move abroad, or something significant happens, an outdated continuing power of attorney may not reflect your new circumstances. This can lead to unintended decisions or even family conflict.

Lack of Knowledge by the Attorney-in-Fact

If your attorney-in-fact does not understand their responsibilities or your instructions, they may make unexpected decisions. We recommend clearly explaining to each attorney-in-fact what they need to do and what they need to be careful about.