Monday, 16 September 2019
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Continuing Power of Attorney.

By: Adv. Jay Hait

continuing power pof attorney jay haitIn Israel the Continuing Power of Attorney is also referred to an Enduring Power of Attorney but it shouldn't be confused with a Living Will.

According to a survey of adults aged 60 and over by the United States National Council on Aging, two of the items that aging adults are most concerned about are financial security and the maintenance of their physical and mental health.

Here in Israel, up until recently, when a person's mental health started to fail them (i.e. they were unable to manage their own affairs), the standard procedure was to have a court appointed guardian (apotropos) put in charge of their affairs. This guardian makes both financial and other decisions for that person.  Some of these decisions require further court approval, and some do not.  All of this is done in accordance with the Israeli Law of Legal Capacity and Guardianship of 1962 (חוק הכשרות המשפטית והאפוטרופסות, תשכ"ב - 1962).  However, the bottom line is that the process is not friendly (many people have even defined it as demeaning) and does not always take into account what the person would have wanted to be done had he or she had the legal capacity to make decisions. 

From 2016 to 2018 amendments were made to the Israeli Law of Legal Capacity and Guardianship of 1962, which have gone into effect, and which bring Israel into line with many Western countries regarding decision making facilities for people who no longer possess legal mental capacity to make decisions for themselves.  These amendments allow for the creation of three new legal tools that people can avail themselves of:  the "Continuing Power Of Attorney" (ייפוי כוח מתמשך), the "Decision Making Supporter" (תומך בקבלת החלטות), and the "Expressed Decisions Document" (מסמך הבעת רצון).

Many people in Israel have heard about the Continuing Power of Attorney and mistakenly believe that it is the equivalent of what is commonly known in Western countries as a "living will" or an "advance health care directive", but this is a misnomer. The Continuing Power of Attorney addresses many facets of these types of documents, but when done correctly it can address much more.

My name is Jay Hait.  I am an attorney licensed in the United States (New York) and Israel, and have offices in Jerusalem, Tel Aviv, Haifa, and Raanana.  My practice and the attorneys who work for me focus solely on family law related matters – pre-nuptial agreements, divorce, return of children to home countries pursuant to the Hague Convention, estates, wills, and guardianship issues.

In this article I will look at the "purpose", the "players", and the "procedure" of the Israeli Continuing Power of Attorney.

The Purpose of the Continuing Power of Attorney

Many people are under the impression that the Continuing Power of Attorney is a tool for the making of health care decisions when they are no longer able to make such decisions by themselves.  It is that, but it is also much more.

The two main underlying assumptions behind the Continuing Power of Attorney (which I will sometimes refer to as the CP"A) are: A. that people would rather have people that are close to them, and that they trust, making decisions for them when they are no longer able to manage their affairs (i.e. instead of a court appointed guardian); and B. that it is preferable to have a system in place that, for most decisions that have to be made when a person is no longer able to manage his or her own affairs, does not require the whole legal procedure involved in having a Guardian appointed by the court and the regular court involvement thereafter.

When a person follows the procedures and has made a valid Continuing Power of Attorney, then once that person has been medically determined to be unable to make decisions for his or herself, the CP"A becomes effective.  The CP"A enables the person appointed to make the decisions (the legal representative appointed – I refer to this person as the POA – in Hebrew the ("מיופה הכוח" to make decisions for the person who appointed them (I refer to this person as the Maker  - in Hebrew the "ממנה") – but only in accordance with the instructions listed in the CP"A. 

This is important – because a good attorney will make sure that there are instructions that address each person's individual situation when they make the Continuing Power of Attorney.  For example – some people may not want their POA to make financial decisions, or some people may want two different POAs who will make decisions on different things – like one for health related issues and one for monetary related issues, etc.  Also, even though the idea of the CP"A is to enable decision making over three main areas (health, financial, and personal issues – like having their hair cut, purchasing clothing, etc.) and gives the POA general power to make such decisions, there are certain things that can only be done by the POA (or POAs if multiple people are appointed) if they are expressly listed – e.g. giving gifts, or making a specific loan to somebody, etc.; and even then there are even things that cannot be done at all without court approval – e.g. if the total of all the transactions allowed is over 100,000 NIS; real estate transactions; estate related transaction, etc.  Finally, there are some things that just can't be done by the POA no matter what – like making a will in the Maker's name or changing the Maker's religion or adopting a child, etc.

The POA is supposed to make decisions for the Maker of the Continuing Power of Attorney in the following order: if the Maker's desires are known, then in accordance with those desires; if they are unknown then in accordance with any directions in an advance directive statement; if there is no advance directive statement, then if the Maker has a current opinion (remember – he or she is now unable to manage their own affairs) then in accordance with what the Maker wants once it has been ascertained that he or she understands on this particular point; if the Maker cannot understand then in accordance with what the POA knows and believes would have been the Maker's desires; and finally if the POA has no clue what the Maker would want, then in accordance with the best interest of the Maker (i.e. taking into account his or her religious, cultural, social, familial, etc. beliefs and if need be talking to friends and family members to ascertain what he or she would have wanted).

It is worthwhile noting that the Maker can elect in the CP"A to have the POA make decisions in accordance to what the Maker would have wanted before his mental incapacity, but in any case will not be able to make a decisions of a significant personal or medical issue which opposes that which the (now mentally incapacitated Maker) wants to be done.

Finally, the Continuing Power of Attorney offers a mechanism to ensure that people who the Maker wants to be updated with regards to his or her situation are indeed notified.  This is important because it enables the Maker to determine who will know and what they will now about what is happening to him or her and / or his or her assets etc. once he or she has become mentally incapacitated.

The "Players"  in the Continuing Power of Attorney regime

There are six main players (or more correctly – six categories of people) involved in the making and implementation of a CP"A.  Each of them has a different role, and if you are considering making a CP"A it is important that you know who each of these categories of people are, and what their role is.

  1. The Maker (in Hebrew הממנה).  This is the person who makes the CP"A.  It is important to understand that the Maker must be of sound mind at the time that the CP"A is drawn up and executed.  This is typically done by having the appropriate medical professional fill out a form on the day you execute the CP"A.
  2. The POA (in Hebrew מיופה הכוח).  This is the person (or people) who you will appoint to making decisions in the Maker's stead.  Generally, when you make a CP"A, this should be somebody that you trust and that is close to you, and has been kept abreast of how you manage your affairs and how you want them to be managed in the future.  Please note that not every person will be able to be appointed as a POA – for example a minor, or somebody who is bankrupt, are excluded from the pool of potential POAs. 
  3. Informed Persons (in Hebrew אדם מיודע).  This is a person (or people) that you want to be given information about what the POA is doing in your name.  You can specify in you Continuing Power of Attorney which information which people are given.  This is a very good tool to use in situations such as when the POA does not have a good relationship with the Informed Persons, or when the Maker has children who live in other countries and for that reason are not listed as one of the POAs.
  4. The Attorney (in Hebrew עורך הדין).  In the Continuing Power of Attorney regime in Israel, the attorney is really the gate keeper.  Remember, the point here is to avoid having the court appoint guardians, and the POA is really acting like a guardian in a situation which would otherwise have had to been court appointed.  It is the attorney's job to ensure that all of the rules have been complied with – including verifying the Maker's mental capacity when the CP"A is executed.   Only attorneys who have undergone special training and are approved by the General Guardian's Office are qualified to draft and submit the CP"A (currently there are less than 5,000 attorneys who are able to do so).  A good attorney will work with you to make sure that your CP"A is as specific as possible and is tailored to your particular needs and situation.
  5. The General Guardian's Office (in Hebrew האפוטרופוס הכללי).  When a CP"A has been properly prepared and executed, it is submitted to the office of the General Guardian's office and put into a special database that they keep which is supposed to be accessible by medical professionals.  The Attorney submits both soft copy and executed hard copy of the CP"A and the idea is that once approved and put into the database by the General Guardian's Office, medical care givers will be able to see that there is a Continuing Power of Attorney for a person when he or she becomes mentally incapacitated, and the CP"A will then become legally effective and the POA will be able to take actions on the Maker's behalf therefrom.
  6. The Court (in Hebrew בית המשפט).  You may be saying "Hey – I thought the idea of the CP"A is to avoid going to court!", and you are right.  However, as with any new legal regime or tool, there has to be an address to go to both when issues that haven't been addressed arise, and when people have disagreements with regards to the implementation and interpretation of both the law and the legal regime or tool itself.  If issues arise (say for example that one of the Informed Person's thinks that the POA is doing things that the Maker didn't want to be done) then the sides (and potentially the General Guardian's Office as well) will have to go to the court which, via the law, is enabled to make decisions regarding and in certain situations to change or limit the CP"A.

The Procedure

Implementing a Continuing Power of Attorney is a relatively straight forward procedure, but it is important that you know what this procedure is so that you can understand what happens in each stage.

The first stage is having an approved Attorney draft the CP"A for you.  A good Attorney will generally want to meet with both the Maker and the POA(s) in order to this, and will have to meet with them at the time of execution.  The POA will have to be executed by the attorney, the Maker, and any POA.

Once the CP"A has been executed it is submitted by the Attorney to the General Guardian's Office, both in soft copy and in original executed hard copy within fourteen days of execution.  After the CP"A has been reviewed, the General Guardian's Office will then send the attorney a notification that the CP"A has been received and is in effect (in my experience, in the Tel Aviv area this can take up to three months).

In the future, generally when a medical care provider realizes that the Maker is unable to make decisions, the POA is to be notified.  The POA gives notice connected to an affidavit containing a medical opinion to the General Guardian's Office that the CP"A should be going into effect, and the General Guardian's office reviews the notice.  When the General Guardian's Office approve the notice, they issue an affirmation that the CP"A has gone effective (and update the database so that persons with access can see it as well) and, paperwork in hand, the POA is thereafter able to make the relevant decisions for the Maker. 

 

Contact Adv. Jay Hait for an appointment on all aspects of family law in Israel