A Will v. a Lasting Power of Attorney

A Will v. a Lasting Power of Attorney

October 1, 2022

As a person paces along the path of his life, he, naturally, begins to ponder what he should do in order to protect his assets and ensure that they reach his relatives after he is gone. At the same time, he sometimes fears what will happen if his relatives have to take care of him when he can no longer do so for himself. The answer to such concerns may be : a will, a lasting power of attorney and a notary public.

A will: A will is a document that regulates a person’s affairs after his demise. If a person dies without a will, the generic instructions regarding the division of the estate, as stipulated in the Law of Inheritance, will apply. However, to the extent that a person chooses, for example, to dispossess one of his relatives, to add a person outside the family as a beneficiary of the estate who may not be able to benefit from the estate unless the testator expressly testates it, etc., he must set this by making a will. While a will need not be notarized, the notarization has a legal significance beyond such of a ‘regular’ attestation clause. In order for a person to sign in front of a notary public, the notary is required to verify that the person has the legal power to sign the document, to be convinced that the person is acting of his own free will, and that the person fully understands the meaning of the action, and if the testator is hospitalized or confined to bed, the notary is also required to receive a medical certificate in the form prescribed by law which was issued on the day the action was taken. Accordingly, a notarized will should generally have the strongest validity and will be respected by the Courts and other State authorities. Therefore, a notarized will as long, as it was duly made, significantly reduces the chance of the will being later attacked.

A lasting power of attorney: A lasting power of attorney is a document that regulates a person's affairs while he is still alive and may be seen as a supplementary document to a will. The possibility of drafting a lasting power of attorney was regulated in Israel in 2016. The amendment to the law led to a rethinking of the institution of guardianship, which is considered an extreme measure which annules the individual’s free will. However, this is not a tightly-sealed solution. For example, in a case decided by the Tel Aviv Family Court in July, 2022, which dealt with a conflict between two brothers under which one of them moved to annule a lasting power of attorney drafted by the mother and to appoint him as her guardian – although both of the motions were denied by the Court, it was held that if the mother’s condition shall change and she becomes not fully lucid, and the need to activate the lasting power of attorney may arise, then it may be possible to re-discuss the issue of guardianship and the drafting of the power of attorney does not fully close the door on this issue.

Thus, these are documents which importance is not be treated lightheadedly and therefore it is vital to be assisted by a lawyer with experience in the field, who will know how to draft such in a manner that will reduce the chance of future disputes. For the sake of efficiency, it is highly desirable that the same lawyer will also be a notary public, who may authenticate the will and thus strengthen it further.