Durable Power of Attorney — What It Is and Why It Matters | Attorney Rozil Amir

What is Enduring Power of Attorney?

Enduring Power of Attorney is an essential legal tool that allows a person (the principal) to grant legal powers to another person (the attorney-in-fact) to act on their behalf even after they lose their decision-making capacity. Unlike ordinary power of attorney, which terminates immediately upon loss of capacity, enduring power of attorney remains valid precisely when it is most needed — when you cannot make decisions yourself.

This is a legal document approved by a government authority (usually the Notary Public authority) and is governed by the Power of Attorney Law, 5748 (1988). Having capacity means that you can understand, consider, and make decisions regarding your legal and financial matters. When you lose this capacity — due to dementia, stroke, accident, neurological disease, or any other reason — enduring power of attorney ensures that someone of your choosing has the authority to manage your affairs.

The Difference Between Ordinary Power of Attorney and Enduring Power of Attorney

Ordinary power of attorney terminates immediately when you lose capacity — precisely when you need help the most. Enduring power of attorney, on the other hand, continues to operate at that very time. This is the fundamental difference that makes enduring power of attorney essential for responsible family planning. When you execute an enduring power of attorney while you have full capacity, you decide in advance who will act on your behalf if you cannot — rather than allowing a court or the government to make that decision for you.

Who Should Consider Enduring Power of Attorney?

In fact, every adult has good reason to consider enduring power of attorney. It is not just for the elderly. A traffic accident, sudden illness, or unexpected health event can impair capacity at any age. Nevertheless, the following groups should give this special priority:

• Older adults — when the risk of loss of capacity increases with age
• People with a history of chronic or neurological diseases — such as diabetes, hypertension, or heart disease
• People working in high-risk professions — or those exposed to dangerous conditions
• Parents of minor children — to ensure their children have someone to manage their financial affairs
• Owners of substantial assets or businesses — that require ongoing management
• People without close family members or with complicated family relationships

Why is Durable Power of Attorney Important?

Durable power of attorney is one of the most important legal tools for responsible family planning, and it is often overlooked until it is too late. Here is why it is so vital:

1. Maintaining Control Over Your Affairs

When you sign a durable power of attorney while you are competent, you choose who will act on your behalf. It is not a court, not a lawyer appointed by the government, and not someone you did not choose. You grant authority to someone you trust completely — a spouse, child, close friend, or even a lawyer or other professional. This ensures that decisions about your money, property, health (in the case of durable medical power of attorney), and life are made by someone you know and are comfortable with.

2. Avoiding Costly and Lengthy Court Proceedings

Without a durable power of attorney, if you lose competency, your family members will need to file a petition with family court to appoint a guardian. This process can take months, cost thousands of shekels in legal fees, and require medical examinations and witness testimony. It also exposes your private affairs to the court. Durable power of attorney prevents this entirely.

3. Managing Finances and Debt

If you lose competency and you have a durable power of attorney, your attorney-in-fact can pay bills, manage bank accounts, handle loans, pay taxes, and enter into or terminate contracts on your behalf. Without this, your bills may go unpaid, your assets may deteriorate, and your debt may accumulate — all while you cannot do anything about it.

4. Protecting Family Members and Dependents

If you have minor children or adults with special needs, durable power of attorney ensures that someone you have chosen can continue to provide for them. This can include managing education funds, insurance, inheritance, and other things they depend on.

5. Consistency in Family Planning

Durable power of attorney works in conjunction with other legal tools such as wills, prenuptial agreements, and advance medical directives. Together, they create a comprehensive family plan that ensures your affairs are managed exactly as you want, under any circumstances.

The Process of Creating a Durable Power of Attorney in Israel

Creating a durable power of attorney requires compliance with strict legal requirements. Here are the steps:

Step 1: Selecting the Attorney-in-Fact

This is the most important step. You need to choose a person you trust completely — someone who will act according to your wishes, who will respect your values, and who will not misuse the powers you grant them. This is typically a spouse, an adult child, or a close friend. You can also appoint more than one attorney-in-fact — for example, two children together, or one for financial matters and one for medical matters.

Step 2: Legal Assessment

An attorney must verify that you have full legal capacity. This means you understand the meaning of your decision, its consequences, and that you are signing freely and without pressure. If there is any doubt, a medical opinion may be required.

Step 3: Document Preparation

An attorney must prepare a durable power of attorney document that includes all your details, those of the attorney-in-fact, the powers you are granting, and any conditions or limitations you wish to impose. While legal templates exist, each document should be tailored to your specific circumstances.

Step 4: Signing and Certification

You must sign the document before a witness (typically an attorney or notary) who verifies your identity and capacity. In some cases, the government requires official certification by a notary or other state authority. This ensures the document is legally valid and can be proven.

Step 5: Storage and Dissemination

Signed copies of the document should be kept in key locations — with your attorney, at your bank, and with the attorney-in-fact. Banks and other institutions may request a copy to confirm the attorney-in-fact's authority.

Legal Requirements and Regulations in Israel

In Israel, enduring power of attorney is regulated by the Power of Attorney Law, 5748 (1988), and its amendments. Here are the main requirements:

Competence

You must be at least 18 years old and must possess full legal capacity at the time of signing. This means you can understand the meaning of the power of attorney and you are doing so freely, without pressure or deception.

Legal Form

An enduring power of attorney must be in writing. It cannot be oral. The document must contain a clear description of the powers you are granting, the names and identification of the attorney-in-fact, and your signature and date.

Witness

Generally, at least one witness must be present at the signing. The witness must be a person with full legal capacity who is not a close relative of the attorney-in-fact (to prevent conflicts of interest).

Notarization

While notarization is not always required, it is strongly recommended. Notarization adds a layer of legal authentication and makes it easier for banks and other entities to accept the document.

Registration in a Public Registry

In some cases, particularly when dealing with substantial assets or debt, you may wish to register the power of attorney in a public registry to ensure it is known and enforceable.

Revocation and Amendment

You can revoke or amend an enduring power of attorney at any time as long as you retain capacity. If you lose capacity, you will no longer be able to amend or revoke the document, but a court may be able to do so in exceptional circumstances.

Comparison: Scenarios and Frequently Asked Questions

The Point: A continuing power of attorney is inexpensive, quick, private, and gives you control. Court proceedings are costly, lengthy, public, and you did not choose them.