As a person advances along the path of life (and not necessarily when reaching the "third age"), the desire arises to protect their assets and ensure the future of their relatives, alongside the fear of who will care for them if they lose their capacity. The answer to this lies in two complementary documents: a will, which defines how the estate will be distributed after death; and a lasting power of attorney, which allows determining in advance who will make a person's property and medical decisions during their lifetime, should they be unable to do so themselves. Unlike other legal tools, the lasting power of attorney allows ensuring the exact realization of a person's will through a "preliminary instructions" document.
For this reason, it is important that the lasting power of attorney is prepared by an experienced lawyer who has only undergone basic training and does not carry professional insurance in an adequate amount, but by an experienced lawyer from a reputable firm, who can help accurately draft the preliminary instructions, ensure the person's will is preserved, help establish proper activation mechanisms for the power of attorney and prevent unnecessary family disputes. Here are some of the main topics to consider in the preliminary instructions:
Medical and health matters - This is one of the most sensitive areas, and it is important that it is drafted precisely. Among other things, it is worth considering: Medical treatments and tests: which types of treatments are approved or ruled out in advance (for example: certain surgeries, transplants, participation in clinical trials); End-of-life care: instructions regarding artificial life extension, connection to machines, resuscitation, or alternatively - a request to focus only on palliative care (prevention of pain and suffering); Identity of caregivers and institutions: is there a preference or objection to certain doctors or a specific medical institution?; Second opinion: is a second medical opinion required before fateful decisions?
Personal matters and lifestyle (welfare and daily life) - This part concerns the quality of life, living environment, and daily routine. Among other things, it is worth considering: Place of residence: is the aspiration to remain at home with a full-time caregiver as much as possible? Under what conditions do you want to move to a nursing home or assisted living and is there a preferred institution?; Lifestyle and religion: maintaining a specific lifestyle (for example: keeping kosher, observing Shabbat, or alternatively a completely secular lifestyle); Leisure and culture: instructions regarding the continuation of activities one enjoys (music, trips, reading books, social gatherings); Grooming: instructions regarding clothing, haircuts, and hygiene (to maintain personal dignity as the person themselves perceives it).
Property and financial matters - Here it can be determined how funds, assets, and liabilities will be managed. Among other things, it is worth considering: Ongoing management of accounts: instructions regarding the payment of bills, management of investment portfolios (solid/risk), and closing/opening savings plans; Management of corporations and businesses: how to manage the business in accordance with the person's will and prevent harm to the business; Management of real estate assets: is it permitted to sell (even if Court approval is required) or rent the house to fund care?; Financial support for family members: whether to continue supporting children/grandchildren financially and if so, under what conditions? (for example: funding studies, help with rent); Gifts and donations: whether to continue giving birthday or wedding gifts, or regular donations to institutions? And even the handling of funds in the initial period after death.
Supervision, communication, and decision-making mechanisms - A critical part to prevent disputes and ensure that the power of attorney is implemented correctly. Among other things, it is worth considering: Appointing an "informed person": defining a close person (who is not the attorney-in-fact) to whom the attorney-in-fact is obligated to report major decisions or the activation of the power of attorney; Division of roles among attorneys-in-fact, if more than one is appointed: do they act together and require mutual consent for every action, do they act jointly and severally where each may act alone, is there a division of domains (for example: one handles property, the other medical); Dispute resolution mechanism: how to decide in case of disagreement between the attorneys-in-fact? (for example: an arbitrator, or determining that one has the final word).
The instructions in a lasting power of attorney can be general or specific, and it is recommended to find the balance that will grant the attorneys-in-fact flexibility alongside preserving the person's red lines. It is very important that the document is drafted and signed only before an experienced lawyer from a firm with adequate professional insurance and internal supervision mechanisms, because ultimately the power of attorney will only be activated at a stage where its creator can no longer state their will and therefore it is important that the document is drafted optimally.
* Osnat Nitay, Adv. is part of the legal team of Afik & Co. (www.afiklaw.com), which is part of BOKS International (www.boks-international.com). Osnat is a graduate of the Faculty of Social Sciences at the Hebrew University of Jerusalem and has a degree in law. She holds a family mediation certificate from the Gevim Center. Osnat is certified by the Israeli Ministry of Justice to create lasting powers of attorneys and graduated a training of the Ministry of Justice on privacy protection. This overview does not constitute any legal advice and it is recommended to consult a lawyer who specializes in this field before making any decision on the issues described in this overview. For more details: 03-6093609, or by e-mail: afiklaw@afiklaw.com