Ongoing Power of Attorney– a Shield that Might Turn to a Double-Edged Sword

July 30, 2019
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An ongoing power of attorney is an extremely important legal tool that enables an individual to ensure his life routine even when he is no longer competent, whether due to a disease, dementia, an accident or otherwise. A clear and simple formulation of preliminary instructions may prevent the need to move the Court in the event of ambiguities, contradictions or domestic disputes. However, incorrect or negligent drafting may lead to the opposite result.

The ongoing power of attorney allows the grantor to generally empower the “attorney” to may make future decisions on behalf of the grantor, when the grantor will no longer be able to express his will or understand. It is possible to furnish the attorney in advance with discretion regarding the content of the decisions and it is also possible, and even advisable, to detail the wishes of the grantor by establishing “preliminary instructions” that would assist the attorney in complying with the will of the grantor.
Trust – The key words when appointing an attorney in the framework of an ongoing power of attorney is trust, trust and trust. An ongoing power of attorney allows the attorney to carry out any action on behalf of the grantor on a wide range of issues and without any obligation to report to any judicial authority. Therefore, identity of the attorney should be considered carefully, while paying attention to character, personality and relationship with the grantor’s immediate family.

Variable scenarios – It is recommended to plan in advance and anticipate variable scenarios that may occur and express the grantor’s wishes in advance. For example, expenses due to the need to change the place of residence due to the worsening of the state of health, how to deal with an apartment that may remain empty? Are there any animals that may require special care or are there any expensive possessions requiring special instructions? and more.

The Discretion – the power of attorney should express the grantor’s will or its preferences, but becuase the reality may change, it may also affect the array of considerations. Thus, it is advisable to avoid directives that may override the discretion of the attorney and avoid stringent instructions such as “I want to live in the house until my last day.” This is to avoid a risk that changing reality, such as the worsening of the medical situation, may ultimately harm the grantor. Therefore, when preparing the preliminary instructions, it is better to utilize wording such as “my preference is…” instead of unequivocal instructions, and thus leave room for the attorney to exercise discretion in appropriate cases. Moreover, if there is a special practice in the family, such as regular support for one of the family members or a special gift during a wedding, it is important to give an explicit expression in the framework of the preliminary instructions., so that the original intent may later be fulfilled.

The ability of the attorney to exercise the power independently and under practical freedom of action is a matter of importance to be considered. However, there are actions of a sensitive nature in which it should be considered whether a special composition of signatures may be required. For example, monetary transactions that exceed a particularly high sum, performing actions regarding pension and provident savings that sometimes require consultation with a financial adviser, personal decisions with special influence and so forth. In such a case, it is very important to address a potential situation in which a number of attorneys are appointed and they disagree on an issue – Without a decision-making mechanism in case of a dispute, the ability to exercise the power of attorney may be thwarted and a legal proceeding will be required – exactly where the power of attorney was supposed to prevent it. It may be determined that the opinion of a specific person will be the one determining or that a decision will be passed by a majority. It is also possible to set that in the event of a dispute a certain action should be avoided.

An Ongoing Power of Attorney may only be exercised before a lawyer who was authorized for that by the Israeli Administrator General. It is recommended not to rely solely on the certification but to work only with a lawyer with many years of experience in the fields of contacts, real estate and litigation and specifically experience in this field. An experienced lawyer will ensure that the power of attorney and the preliminary instructions are tailored made for the grantor and will not be based solely on a template, as may be done by an inexperienced lawyer.