By: Amira Solow, Advocate and Notary
Imagine a situation where God forbid you, a family member or loved one, reaches a stage in which they are unable make their own decisions, whether medical, financial, personal or otherwise.
Prior to the recent reform in Israeli law, these situations were dealt with by means of a court appointed legal guardian, which meant that the legally incapacitated individual, had very little say in how their life was led.
A reform in the Israeli law which came into effect in 2017, created an Enduring Power of Attorney (“EPA”), which provides the “Appointer” with the power to give detailed instructions as to how his or her affairs shall be managed, who will have the power to make decisions on their behalf in all matters relating to their finances, personal issues, health and assets -“the Appointee”.
This tool is meant to minimize court appointed legal guardians, a nomination which can severely limit the freedom of the individual by appointing, without their consent or decision, another individual who may not follow their desires, wishes and beliefs or lacks the qualifications to carry out this responsibility.
What in fact is an Enduring Power of Attorney (EPA)?
Any adult, over 18, who has legal capacity, may draw up a legal document detailing how and by whom their financial, medical and personal affairs, including daily needs, place of residence, mental and social needs, shall be handled, if and when their physical or mental states deteriorates.
A person’s state can deteriorate in a manner that affects their judgment and ability to make decisions, as a result of various reasons, such as accident, mental illnesses, old age and dementia. Therefore, it is imperative to sign an EPA even at a young age.
The Appointer, has extended freedom, while still able to make and execute decisions, to appoint one or several appointees, or a combination thereto, and to include financial and medical matters, fully or partially. The Appointer is even permitted to instruct that the Appointee be entitled to receive a salary and state its amount.
The appointment is usually based on either a trusting and loving relationship such as close family members, or professional expertise and experience, such as accountants and lawyers.
The Appointee, must act according to the instructions dictated by the Appointer and is required to certify and sign before a lawyer (or medical professional when signing a medical power of attorney) that they agree to the content of the EPA, including the primary guidelines included therein.
If the primary guidelines are deemed illegal, impossible to carry out or endanger the Appointer, the Appointee is permitted not to follow the instructions and may petition the court for instructions.
The EPA comes into effect when the Appointer can no longer manage their affairs personally and this way he can rest assured that his assets, health and personal matters, are being taken care of by someone he fully trusts.
Additionally, the Appointer is entitled to nominate third parties who are legally entitled to receive information from the Appointees, or decide that the General Custodian’s Office shall supervise the Appointee’s actions. This is to ensure that the Appointer’s instructions are faithfully and accurately being carried out.
It is important to know that the EPA must be drawn up and signed before a lawyer who has received qualification from the Israeli Bar Association in this specific field and is certified to prepare, advise and supervise the execution of an EPA. The lawyer drawing up the EPA is prohibited from being appointed as the Appointee or other third party, in order to prevent future potential conflicts of interest.
While drafting this document, the lawyer will normally discuss at length with the Appointer all issues regarding to their financial, personal and health matters. This conversation is crucial to accurately reflect the Appointer’s wishes within the EPA.
The possibilities are endless as the Appointer can appoint various people or combinations of people to make decisions in different matters, for instance, a person can appoint their spouse for medical issues, their accountant and one child jointly for financial issues and their siblings for receiving information.
Once the EPA has been signed both by the Appointer and Appointee, the lawyer must deposit the EPA with the General Custodian’s Office and receive confirmation of such deposit. The EPA will only become legally effective when at least one of the conditions set out by the Appointer is materialized, such as a joint decision by the Appointer’s family doctor and the Appointee.
To summarize, the EPA is an essential tool for anyone concerned with their future, who wishes to plan financial and medical matters on their own, with a clear state of mind, via empowering individuals who they trust.