a parent that is getting older and not at his or her prime are not limited to Turkish telenovelas on Netflix – regretfully, such are a daily reality. At times, these conflicts - which can easily destroy the delicate family fabric and cause great distress to the parent - may reach the point of appointing a guardian over the owner of the property who is mentally incapacitated - in order to prevent pressure and even coercion on the part of family members. The appointment of a guardian is a drastic step that means restricting liberties and which can be avoided by preparation of a lasting power of attorney in advance.
The possibility of making a lasting power of attorney was regulated in Israel in 2016. This amendment permitted a new approach of the guardianship institution, inter alia by anchoring the individual’s will through the establishment of institutions less harmful than the appointment of a guardian, such as a lasting power of attorney and the appointment of a decision supporter, as well as limiting the discretion to appoint a guardian for a non-minor, by setting prerequisites for such appointment and even in case of such appointment it may be limited by purpose, scope and time.
In contrast to the guardianship vehicle - where Court’s approval is required for each action, a legal proceeding that may be highly abusive is held and once a guardianship order is issued, its revocation is almost impossible - the lasting power of attorney takes effect only when appointor is unable to conduct his own affairs and make decisions for himself in predefined matters and its entry into force is done in a very simple way and without the need to go to Court. As long as the person is able to take care of his affairs, the lasting power of attorney is not does not enter into effect and the appointor may still make changes thereto as well as update it.
In a case heard by the Supreme Court in June, 2021, a woman's son sought to revoke a lasting power of attorney made by his mother and, instead, appoint her a guardian based on the grounds that the lasting power of attorney was made under coercion by his brother. The Court dismissed the claim and held that the mother is competent to take care of her own affairs and when a person is competent to do so chooses to draft a lasting power of attorney, generally, this created an "immunity" from appointing a guardian, with the difference between the two vehicles being abysmal in terms of the appointor’s liberties when the vehicle enters into force.
In light of the above, it is advisable to consider creating a lasting power of attorney with an experienced law firm, in order to avoid situations such as the one described above, in which family disputes, and in particular property disputes, which are often a daily reality, lead to attempts to appoint a guardian. The same qualified lawyer will ensure clear adherence to the provisions of the law, the appointor’s qualification to create such power of attorney so that it shall be difficult to challenge its validity, and shall also provide the appointor with a detailed and comprehensive explanation as to ensuring maximum consideration of his will after the entry into force of the lasting power of attorney and tailor the document so that it would be best suited to the appointor's needs, taking into account the personal circumstances as well as the family fabric. Beyond the huge savings in both heartache and costs, the amount of time to be saved by avoiding family disputes can be spent watching on Netflix telenovelas depicting the lives of others ...