The continuing power of attorney: a mandate in case of incapacity
In Israel, you have the option of giving someone else the power to act on your behalf, should you one day lose your mental capacity. The Ministry of Justice now grants certain lawyers, who have received special training, the authority to draw up documents allowing instructions to be given regarding future choices in the event of incapacity.
1. The continuing power of attorney: This system replaces, in a way, guardianship with a personal choice made by someone who wishes today to grant power to the person or people of their choosing, to act in their name when the time comes, should they no longer be of sound mind. The mandate can cover financial matters, personal matters, and/or medical matters. This allows for faster action with fewer constraints than guardianship when needed, but on the other hand, there is also less oversight. It is also possible to draw up a special continuing medical power of attorney for health matters to be addressed in case of incapacity, and even a specific power of attorney for incurable situations.
2. When and how to grant this mandate? It is essential that this document be signed by a person of sound mind, who can thus decide in advance what will happen to them on the day they are no longer able to make their own decisions. Generally, past a certain age, it is necessary to provide a medical certificate; if it is positive, you may draw up and sign the mandate, otherwise a guardian will need to be appointed for you instead. The continuing power of attorney is drafted and signed before a lawyer specialized and accredited for this type of document, following a very precise protocol. At least two appointments are mandatory, and all aspects of life are addressed in detail, so that the signatory can give their instructions. This is not a standard document, unlike the French future protection mandate, for example. Once signed, the document is registered with the Ministry of Justice and will come into effect according to the law or the signatory's instructions.
3. Differences with guardianship: Guardianship is a legal status granted by a judge. The choice of guardian is subject to a judicial procedure during which the family and the guardianship authority may give their opinion. Once appointed, the guardian is required to submit annual reports and works under the supervision of the Ministry of Justice. The guardian is not bound by the wishes of the protected person if that person did not register instructions through the continuing power of attorney method.
4. Acts still requiring oversight: As with guardianship, the law sets out the broad limits of the agent's power under a continuing power of attorney. Under no circumstances can the agent marry or divorce on the person's behalf, vote, renounce an inheritance, or draw up or cancel a will. Additionally, certain highly significant acts, such as the sale of real estate, are subject to a judge's approval, as is lending money on behalf of the protected person. In medical matters as well, certain aspects may be restricted or subject to a judge's authorization.
It is therefore advisable to plan ahead independently for a potential state of incapacity, rather than leaving it to the State to entrust the necessary authority to a guardian it appoints and oversees. Our firm has received the required certification and is at your disposal.
