How to Activate an Enduring Power of Attorney? | Attorney Rozil Amir

What is a Durable Power of Attorney and When Should You Execute It?

A durable power of attorney is a vital legal document that allows a person (the principal) to transfer legal and financial powers to another person (the attorney-in-fact) even in the event that the principal loses their capacity to make decisions independently. Unlike a standard power of attorney, it remains valid even when the principal becomes fully legally incapacitated — this situation is a fundamental distinction that makes the power of attorney durable.

The need for a durable power of attorney arises in many life situations: when a person fears the onset of dementia or Alzheimer's disease, when there is a history of mental health issues, or simply as part of responsible future planning. It is also an essential tool when managing complex family assets, arranging real estate transactions, or managing investments and savings.

The principal can grant broad powers (financial, medical, and personal) or limited powers (for a specific purpose only). This choice depends on personal plans, the degree of trust in the chosen attorney-in-fact, and the nature of the assets or matters requiring management.

Why is a Durable Power of Attorney Important?

• Preservation of Autonomy: The principal retains control over decisions as long as he or she is competent and can enjoy the knowledge and security that a trusted person will manage their affairs should something happen.
• Avoidance of Guardianship Proceedings: A guardianship proceeding in family court is lengthy, expensive, and public. A durable power of attorney allows you to choose the trusted person yourself without the need for court intervention.
• Continuity in Asset Management: If you are a business owner, real estate owner, or investment portfolio holder, a durable power of attorney ensures that your assets are managed continuously and without legal complications.
• Protection of Loved Ones: The attorney-in-fact can handle debts, medical expenses, mortgage payments, and other personal matters without delays.

Who Needs a Durable Power of Attorney?

In fact, every adult with assets, liabilities, or family responsibilities should seriously consider this matter. This includes parents who want to protect their family interests, business owners who want to ensure business continuity, spouses planning a shared future, and elderly individuals who wish to remain in control of their assets as long as they are able. Young people with health issues or concerns about accidents can also benefit from this security.

Process of Exercising Continuous Power of Attorney — Legal Steps

Exercising continuous power of attorney is a structured and precise process that requires attention to legal details. Contrary to popular belief, it is not a document that you simply sign and file away — it requires a clear understanding of its implications and proper application when needed.

Step 1: Preparation and Legal Consultation

Every responsible process begins with a consultation with an attorney experienced in family law and succession planning. At this stage, you need to consider:

• What powers do you want to grant (financial only or also medical)?
• Who is the most trustworthy person to receive these powers?
• Are there situations in which you want to limit these powers?
• How do you want the attorney-in-fact to behave regarding your assets (for example, can they sell real estate or only invest in savings)?

The attorney will also advise you on the implications of this choice — not only from a legal perspective, but also from a relational and financial one. They will help you understand the risks and available protections.

Step 2: Preparation of the Document

A continuous power of attorney must be in writing and signed before witnesses. In Israel, the legal requirements are:

• The document must be in Hebrew (or an official Hebrew translation).
• It must be signed by the principal in the presence of two adult witnesses.
• The witnesses must be competent — not close relatives and with no conflict of interest.
• It must be clearly stated that this is a continuous power of attorney (not a regular one) with the meaning explained in clear Hebrew.
• It is advisable that the document be prepared by an attorney to ensure full legal compliance.

An experienced attorney will know how to draft the document so that it is clear, legally defensible, and covers all relevant scenarios. They will also ensure that it will be accepted by banks, government offices, and courts.

Step 3: Court Approval (in Certain Cases)

Generally, a properly prepared continuous power of attorney does not require court approval before it is exercised. However, there are cases in which it is advisable or necessary to file a petition:

• If there is doubt about the capacity of the principal (for example, if there are already signs of cognitive decline).
• If family members or other parties may challenge the validity of the power of attorney.
• If you want to ensure that the document will be accepted by all institutions and government bodies.

A petition for approval at the family court includes filing the petition, appearing before a judge, and verification of the principal's capacity. This can take weeks or months, but it provides complete legal protection.

Step 4: Presentation of the Power of Attorney to Relevant Institutions

After signing (and in certain cases, court approval), the power of attorney must be presented to banks, insurance companies, tax authorities, and other entities that manage the principal's assets or affairs. Each institution may have its own requirements:

• Banks typically require additional identity documents, signature verification, and the signature of the attorney-in-fact.
• Tax authorities and other authorities may require court approval.
• Insurance companies and pension funds may impose their own requirements.

It is recommended to keep an original or certified copy of the power of attorney and distribute copies to all relevant entities to ensure a smooth process.

Step 5: Actual Exercise of the Power of Attorney

When the principal loses capacity (or when they decide that they want the attorney-in-fact to begin acting), the attorney-in-fact can begin to exercise their powers. They must:

• Present the power of attorney to each entity they approach (bank, government office, etc.).
• Begin managing the principal's assets in accordance with the terms of the power of attorney.
• Keep accurate records of every transaction (banks typically require this).
• Act within the scope of powers granted (if the power of attorney limits powers, they must stay within those limits).

Types of Durable Power of Attorney and the Differences Between Them

A durable power of attorney can grant a wide range of powers, and each choice affects how it is exercised and what safeguards are necessary.

Durable Financial Power of Attorney

This is the most common type. It grants the attorney-in-fact authority to manage the principal's financial assets, including:

• Management of bank accounts and execution of financial transactions.
• Management of investments and pension funds.
• Sale or purchase of real estate (if the authority was explicitly granted).
• Payment of debts, medical expenses, and housing fees.
• Management of a business or partnership (according to the terms of the power of attorney).

A durable financial power of attorney is essential for property owners, business owners, and individuals with significant assets. It ensures that assets will not remain unmanaged if the principal becomes incapacitated.

Durable Medical Power of Attorney

This type grants the attorney-in-fact authority to make medical decisions on behalf of the principal, including:

• Consent to or refusal of medical treatment.
• Selection of a physician and receipt of medical information.
• Decisions regarding end-of-life care treatment (in accordance with the law).
• Selection of a hospital or nursing facility.

A durable medical power of attorney is somewhat more sensitive because it involves personal and vital decisions. An attorney will ensure it meets all legal requirements and clearly reflects the principal's wishes.

Durable Personal Power of Attorney

This type grants authority for personal decisions such as:

• Choice of residence.
• Management of social relationships and communications.
• Decisions regarding education or care for minors (if applicable).

This is less common than the other types, but can be important in certain scenarios.

Limited Durable Power of Attorney

The principal may also grant a durable power of attorney that is limited to a specific purpose. For example:

• "Durable power of attorney for the sale of a specific property only"
• "Durable power of attorney for the management of a specific bank account only"
• "Durable power of attorney for the execution of business contracts only"

This limited power of attorney can be highly valuable when you wish to grant only specific powers without the risk of misuse of broader authority.

Costs and Typical Ranges

The cost of preparing a durable power of attorney varies depending on the complexity of the case and the scope of the powers. Typically, the preparation of a basic document by an attorney includes in-depth legal consultation, preparation of the precise text, and supervision of the signing process in the presence of witnesses. These costs are significantly lower than the cost of a guardianship proceeding in court, which can last for months and include court fees, medical examination fees, and extensive legal time.

If court approval is required, the costs increase due to filing fees, additional legal time, and the need for additional documentation. However, even this is usually cheaper than a full guardianship proceeding, which can be lengthy and substantially more expensive.

It is recommended to ask an attorney for an accurate assessment after you are able to describe your situation. Rosil Amir Law Office offers free initial consultation to discuss your needs and give you an honest assessment of the expected costs.