Israeli law has recently changed the way it deals with the elderly and incapacitated by empowering them with a legal option that enables them to decide how they would like their medical and personal affairs to be handled once they cannot do so themselves. This is one of many changes we see coming forth into the legal system which is aimed at preserving the independence and self respect of those who suffer from diminished capacity either due to age, an accident or otherwise .
New legislation was recently implemented-amendment no. 18 to the Legal Capacity and Guardianship Law 5722-1962, which regulates the creation and the use of an Enduring Power of Attorney (EPA).
As opposed to a regular Power of Attorney, which is no longer valid, once the appointer is no longer mentally competent, the EPA comes into effect exactly at that time.
The EPA allows a competent person (the appointer) to appoint another person (the appointee) to attend to their personal and/or medical and/or property matters when the appointer is alive but is no longer in a position to do so himself. The idea behind it is to grant the appointer full independence to choose their own future course of care of their financial matters and/or health issues and giving these instructions to be attended to by an appointee of their choice which is usually a close friend or a family member.
Personal matters that can be regulated by an EPA can include, for example, instructions to the appointee concerning where the appointer would prefer to live when he/she is no longer competent, including an option to be transferred to an institution when necessary or to be left in his/her home with a foreign worker. Personal medical matters include, for example, what medical treatments the appointer will agree to receivePersonal affairs can include for example various financial and banking issues, renovating the appointer’s apartment, gifting money to various family members on various occasions.
The appointee is not required by law to provide yearly reports to the Administrator General unless it is specifically specified in the EPA.
Certain matters require an express authorization from the appointer in the EPA and further matters can only be dealt with upon approval of the Israeli courts regardless of what is written in the EPA.
It is also important to note that the appointer can appoint more than one appointee to act jointly on any decisions and he can also appoint a successor appointee to act on his behalf.
The appointer can determine that the appointee shall be entitled to receive remuneration and thus he/she will need to determine the scope of the remuneration. The appointee is entitled to be reimbursed for reasonable expenses incurred during the performance of his duties as mentioned in the EPA.
The appointer can also decide of an additional person (aside from the appointee) who should be notified once the EPA comes into effect as well as who is authorized to see all the details of the EPA document, this as an additional way to make sure that the appointee is faithfully executing the instructions of the appointer.
The appointer is the one to decide when the EPA goes into force (for example upon reaching a certain age or event, upon the decision of a family member/s, upon determination by a medical opinion).
Anyone who is competent and at least 18 years old can sign on an EPA. If there is any doubt regarding his/her eligibility, a medical document must be attached to the EPA, indicating the cognitive condition of the appointer.
The EPA needs to be drawn up and signed before a lawyer who has completed a special program conducted by the Israel Bar Association (IBA) that qualifies to advise, prepare and file the EPA. In drawing up this document, the lawyer will normally discuss with the appointer all the issues (financial, family and health) that will affect what is written in the EPA. The lawyer drawing up the EPA is prohibited to be the appointee or nominated as the one being notified of the EPA coming into effect. This is in order to ensure that there will be no conflict of interest in the future. After the EPA has been signed by the appointer and the appointee, it is filed online and in addition, the originally signed form must be deposited (either by the lawyer who filed the EPA, or by the appointer himself), with the Administrator General.
Upon the death of the appointer, the EPA terminates and consequently further dealings with the appointer’s assets will need to be dealt with according to his will or according to Israeli inheritance rules.
Further documents that are part of the amendment law mentioned above include:
An option to file preliminary instructions regarding guardianship if and when that becomes relevant.
To file an EPA for healthcare issues only as a totally separate form, it is important to note that this document does not address end of life decisions, and can be verified by a doctor, nurse, lawyer, social worker or psychologist.
A power of attorney form that provides medical guidelines for the treatment of a dying patient. This document only applies to medical decisions in regard to a terminally ill patient and includes what type of treatment one would like to receive /decline at such time.
Supporter- one that can help the appointer making various decisions financially, medically or otherwise. The supporter is not able to make the decisions on behalf of the appointer.
The content of this article is intended to provide a general guide to the subject matter and is not a substitute for legal consultation. Specific legal advice should be sought in accordance with the particular circumstances.
Mirit Hoffman (Reif), is a qualified Israeli attorney, and a registered trust and estate practitioner (TEP). Mirit is qualified to advise, prepare and file EPA forms.She can be reached at firstname.lastname@example.org or at 0522407999