Ongoing Power of Attorney–A Legal Guiding Light for a Foggy Day

March 23, 2019
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The article was published in Afik News 279 27.03.2019

One of the fears that preoccupy many people is what will happen if, and when, one loses the ability to make decisions. Who would guide him through the fog? How can I ensure that my will be honored even when I am unable to express it anymore? The great uncertainty was settled by the Israeli legislator in 2016 as part of Amendment 18 to the Legal Capacity and Guardianship Law, 1962. The signing of an ongoing power of attorney may have far-reaching significance, because within the framework of the power of attorney a person may determine that it will remain in force even if he will want to cancel it when he is not qualified and, in fact, the power will be considered irrevocable. It is therefore important to choose the correct experienced lawyer to assist in the drafting of this important document.
Within the framework of the amendment to the law, the legislature established new arrangements aimed to assist and support a person at a time when such person is no longer able to manage his own affairs. An “Ongoing Power of Attorney” is a legal document enabling a person (grantor) to plan his future, according to his own will, by appointing another person who will be authorized to manage the grantor’s affairs in various areas of life at the time that the grantor is unable to do it by himself (e.g., due to cognitive disease such as Alzheimer’s disease or dementia). The Ongoing Power of Attorney is granted in advance, at a time when the grantor is capable of carrying out actions and is able to understand and make decisions by himself. The advantage of this legal tool, is that it allows a voluntary mechanism that does not involve the Court, and the appointment of a person known to the grantor and trusted on him, as an alternative to the appointment in the future of an unknown guardian.
The grantor may determine that the “attorney” may make decisions in a wide range of subjects and areas of life, such as choosing one or more of the following variety: A. Property matters (bank account management, asset management, business management, etc.); B. Personal matters (decisions regarding health related issues, place of residence, food, clothing, nursing care, etc.); and/or C. Medical matters (treatment or hospitalization). One may appoint a number of “attorneys” and sets instructions as to their operatation (e.g., each or together, in certain matters).
Normally, the Ongoing Power of Attorney comes into force when the grantor is no longer able to understand and make decisions on the matters appearing in the power of attorney. However, the grantor may set other preconditions for the entry into force. Thus, for example, the grantor may set that the entry into force will be when the grantor ceases to understand the matters as determined by an opinion of a family doctor or specialist. Alternatively, the grantor may set a future date in which the power of attorney will enter into force. Upon meeting the preconditions for the entry into force, the “attorney” is to submit a declaration to the Israeli Administrator General, who shall give an official confirmation of the entry into force of the Ongoing Power of Attorney, without the need to move the Court for that.
Although the Ongoing Power of Attorney may be used to make decisions and take actions in a very wide range of areas, the law excludes several issues that cannot be acted upon by virtue of the power and sets other powers that will apply only if specifically enabled in the power. For example, there are actions that by their nature are to be performed by the grantor personally and may not be done under the power, such as adoption, voting in elections, writing a will, etc.
Apart from the fact that it is important to adhere to the provisions of the law, it is vital to draft the Ongoing Power of Attorney in a clear manner, while devoting thought and careful thought and planning to the wishes of the grantor and his needs. The Ongoing Power of Attorney may only be exercised before a lawyer who has passed a special course and has been authorized by the Israeli Administrator General. Taking into account the fact that the Ongoing Power of Attorney is a necessary stage in pre-planning for the most sensitive stage of life, it is recommended not to rely solely on the certification by the Administrator General’s office and consult a lawyer with many years of experience in the field of contacts, real estate and litigation and experience in this field. The lawyer will examine the relevant facts, provide a comprehensive explanation in simple and understandable language about the legal implications and review the legal alternatives, the matters that may be included in the power of attorney, the possibilities of revoking the power of attorney, the matters that require agreement and other issues.