Important Mechanism for Addressing Life's Uncertainties
The following is an update of our original article posted in 2017 that we believe is timely and we hope will make it easier to address this important issue at this time of uncertainty.
In recent years, there have been significant changes in the attitudes towards guardianship and the rights of individuals with disabilities.
The United Nations Convention on the Rights of Persons with Disabilities was established to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” The convention calls for a transition from guardianship that restricts one's liberty to a mechanism that will strengthen the right of every person to make decisions about his or her life.
Historically, Israel has offered few mechanisms for individuals to retain their rights and their capability of self-determination once they have lost mental capacity. Except for a limited number of healthcare directives, all powers of attorney (POA) created in Israel became void and in most cases, a court-appointed guardian or apotropos is appointed to administer all of an incapacitated person’s affairs, once they are deemed incompetent.
1. Enduring power of attorney.
2. New guidelines for guardianship.
The objective of these changes is to significantly reduce the instances in which an individual’s rights are transferred unilaterally under guardianship and to enable individuals to retain as much decision-making power as possible, depending on their circumstances.
Enduring Power of Attorney
An EPOA enables a competent individual to express their desires for how their affairs should be run or how they should be cared for once they become incapacitated. In the meantime, individuals can tend to their affairs to the extent that they are able.
Israel’s EPOA enables one to decide who will manage their affairs, make financial and medical decisions on their behalf, and decide what their daily reality should look like if their judgment becomes fully or partially impaired.
Creating an Enduring Power of Attorney
The EPOA forms are detailed on-line forms that can only be submitted by a specially trained attorney, a list of which will be posted by the Israeli Bar.
Any competent person over the age of 18 can establish an EPOA. An individual may appoint a family member(s) or friend(s) as an agent(s) or may choose a professional proxy, such as an attorney or an accountant that they trust.
Individuals may appoint a single or group of individuals to represent their interests once they are incapacitated. Different or combinations of individuals can be appointed for various fields, such as finances and healthcare.
Unlike a regular power of attorney that comes into force immediately, the EPOA comes into effect only if the grantor becomes incapacitated.
Importantly, the EPOA enables the grantor to manage their affairs, to the extent possible, in situations of partial incapacity or under an extended deterioration.
Using an Enduring Power of Attorney
The EPOA can extend to all aspects of life, from making medical decisions and managing the financial affairs of the grantor to any other matter that may arise.
The EPOA was designed to provide the grantor with the flexibility to stipulate the conditions under which it comes into force.
An individual may choose to provide the agent with discretion regarding a specific matter or can stipulate a course of action in advance. For example, the grantor can specify his doctors, determine that he wants to stay in his home if circumstances permit, or choose a preferred residential setting.
It can also be used for periods of "temporary incapacity".
To protect the grantor, the agent can not unilaterally implement the EPOA without corroboration of an additional person who can attest to the grantor's condition.
Another advantage of the EPOA is its lack of dependence on the courts and the General Custodian, which can save significant time and expense.
The EPOA cannot be used for “end of life” instructions, for which the Directive of Terminally-Ill Patients still apply.
It is often difficult to contemplate the issues that should be addressed in an EPOA, but every adult should consider establishing one. Important life planning issues often weigh heavily in the minds of an individual and their family, and the EPOA provides a way to meaningfully enhance the quality of life and reduce the emotional, financial, and logistical challenges that can complicate an already difficult time.
For more information on establishing an EPOA please see the attached pieces by Israeli family law attorneys or contact us at MaimonWealth.