Lasting Power of Attorney- Will one’s will and dignity trump?

Lasting Power of Attorney- Will one’s will and dignity trump?

Written by

Osnat Nitay
January 2, 2023

A person executes a lasting power of attorney in which it is recorded that if he becomes ill and is unable to manage his affairs, one of his daughters will be able to do it for him. After he is declared incompetent and the lasting power of attorney is activated, may another daughter demand that the power of attorney be revoked on the grounds that her sister is spending the father's money or is behaving in unappropriated manner?

The Israeli Legal Capacity and Guardianship Law allows a person to prepare for the day when he is no longer able to make informed decisions and prepare in advance a "lasting power of attorney" in which he will decide and determine in advance who will be his proxy – appointing a person he trusts to “step into his shoes” and take decisions for him when it will be decided by a specialist doctor that he is no longer fit to make decisions independently. The rationale for this is to allow a person to leave instructions or guidelines that will help his proxy to fulfill the person's wishes at a time when he can no longer express his opinion or make decisions that benefit him. However, life teaches that sometimes there is a gap between a person's will and reality. For example, a person who appointed one of its children to serve as a proxy and believes that such child will act in such person’s best interest may discover that the power entrusted to the child is misused or, alternatively, results in a serious conflict between its children to the point of requiring the intervention of the Court and the appointment of a guardian for his affairs although it is completely in contrary to his original intention.

For example, in a case heard in November, 2022, the Safed Family Court was forced to intervene and cancel a lasting power of attorney after the grantor objected to the actions taken by its wife as the “attorney”. In that case, the family remained divided due to the conflict and after the Court considered the nature of the close and extended family and the various options, it preferred the grantor’s interests and appointed an external party as guardian for a limited period. In another case, heard in June, 2022, a Jerusalem Court held that an external guardian is to be appointed, despite the existence of the lasting power of attorney. In that case, the “attorney” did not function properly in a way that caused many conflicts between it and the other family members who complained about the improper use of the grantor’s funds for its private needs and making the grantor sign various documents, as well as preventing him from meeting the other family members.

Beyond the fact that negligent drafting of a lasting power of attorney may result in harming the free will of the grantor, at a time when it will be difficult for him to object or express his opinion, a generic lasting power of attorney drawn up without any consideration of the grantor’s circumstances, may also result in "legal accidents" and cause irreversible damage to the delicate family fabric. While the future is unpredictable and it is impossible to absolutely avoid unexpected situations, it is recommended to try and minimize certain scenarios by contacting an experienced lawyer, who will review the grantor’s needs, as well as the family and social environment and only then assist in drafting the lasting power in a manner that is tailored to the client needs while anticipating the possible scenarios and preparing for them in advance. In some cases, it is recommended to have a recent medical examination confirming that the grantor is legally capable at the time of executing the power. In addition, it is worthwhile and recommended to prepare the “attorneys” in advance for the position they may receive, which preparation will include matching expectations and may also prevent malfunctions in the future in the event that the need to exercise the lasting power arises.