On Covid-19, legal capacity and lasting power of attorney

On Covid-19, legal capacity and lasting power of attorney

January 15, 2021

The recent period and the spread of the Covid-19 virus, brings with it for many people - not necessarily the elderly - many questions about the need to settle their affairs if they find themselves hospitalized under a serious condition and can not take care of their own affairs. The current situation requires a rethinking of the need to draw up a lasting power of attorney document, which regulates the handling of the affairs of a person who has lost, temporarily or permanently, his ability to take care of his affairs - a tool that many are unfamiliar with.
The possibility of making a lasting power of attorney was regulated in Israel in 2016 as part of Amendment 18 to the Legal Capacity and Guardianship Law, 1962. Unlike a relatively complex and "violent" legal procedure against the person, of appointing a legal guardian, the lasting power of attorney procedure is relatively simple. In it, a person sets in advance how such person wishes things to be conducted in such a case, a procedure that respects the person's will, prevents the intervention of State officials whose time is limited and allows the person to continue to control such person’s life.
The lasting power of attorney comes into effect only when the person loses legal capacity, that is, when the appointer is unable to manage his affairs and make decisions for himself in matters defined in the lasting power of attorney document. If a person is able to take care of his affairs as aforesaid, then the power of attorney has not yet entered into force (and at this point the power of attorney can still make changes to the document). The same is true of the case of a power of attorney who was again able to manage his affairs and make decisions for himself - for example, if he was anesthetized and resuscitated but regained consciousness - a situation which during the Covid-19 period happens to quite a few people.
One of the advantages of a lasting power of attorney, unlike other proceedings, is that it takes effect immediately and without the need for legal action, and even after the power enters into force, the empowered person respects the will of the appointer, as far as the appointer can expresses his will, either in advance, in the power document, or at such time, for example when the appointer is able to understand certain matters and make decisions in connection with them, but not on other matters, or when the appointer regained consciousness. The tool of lasting power of attorney allows for the creation of preliminary instructions by the appointer regarding the manner of implementing the lasting power of attorney, and also allows the setting of the identity of a particular person to whom the empowered person must report and thus create breaks and balances.
In order to prepare a lasting power of attorney all that is required is that the appointer be legally competent and as long as the person is with legal capacity, only such person can revoke or change the power. Thus, for example, in a case heard in the Family Court of Tel Aviv in December, 2020, the son of a woman who drafted a lasting power of attorney contended that the power of attorney which appointed his brother, should be revoked. The Court dismissed the claim and held that the only test is the legal capacity of the mother and because she is still legally competent, she is the only one with the right to revoke or change the power.
In light of the above, it is highly recommended, especially during this period, to consider creating a lasting power of attorney with an attorney from a firm with experience, not only in the area of lasting powers of attorney but also in other areas related to the specific case, whether corporate law, real estate or contracts. The same qualified lawyer will ensure clear adherence with the provisions of the law, ensure that the appointer has the legal capacity and can also provide the appointer with a detailed and comprehensive explanation so as to ensure consideration of his maximum will after the power takes effect and build the correct document for that person and not used a standard template.