Durable Power of Attorney

A durable power of attorney is a legal arrangement which has been introduced within the framework of Amendment 18 of the Legal Capacity and Guardianship Law and places emphasis on a new social perception in regard to people with disabilities, which ensures the right of every individual to live his life as he wishes and as he chooses.

A power of attorney is a legal document that enables an individual to plan his future while he is still able and capable of making decisions and carrying out actions. A durable power of attorney enables an individual to determine how his life will appear in the future in the event that he reaches a situation in which he is not able to make decisions or manage his affairs, and to appoint reliable people as the holders of his power of attorney who will act on his behalf and for him in the various fields of life.
The person who words the power of attorney (the appointer) can determine in which field he will receive the help of the holders of the power of attorney and what the authorities shall be of the latter. Furthermore at any time it is possible to change the durable power of attorney by means of depositing a new durable power of attorney or to cancel it.
As the durable power of attorney is a legal arrangement based on the personal choice of the appointer and on a relationship of closeness and trust (the appointer chooses for the role a close family member or another person who he is close to and who he finds trustworthy). The legislator is of the opinion that in a durable power of attorney there is no reason for ongoing supervision (as is imposed on a guardian). However, several balances and checks have been determined in order to ensure that the appointment of the holder of the power of attorney is carried out using free will and with a full understanding of the significance of the process.

1. The power of attorney will be prepared and approved by a professional entity, an attorney, who has no personal interest in the power of attorney and who has undergone mandatory training of the Public Trustee (when this is a medical durable power of attorney this can be a physician, social worker, psychologist or a nurse).
2. It is mandatory to deposit the durable power of attorney with the Public Trustee who will administer a database of durable powers of attorney.
3. The holder of the power of attorney is required to transfer to the Public Trustee a declaration that the terms for the coming into force of the durable power of attorney have been established (transfer of the notice constitutes a condition for the validity of the durable power of attorney).
4. The Public Trustee will send the appointer a reminder regarding the existence of the power of attorney and notices in order to ensure that the power of attorney reflects his current wishes.
5. The appointer is permitted to determine additional people who the holder of the power of attorney shall be required to notify regarding his decisions and his actions.

Who can appoint a holder of a durable power of attorney?

 The appointer must be an adult, resident of Israel, who understands the significance of the durable power of attorney, its objectives and its consequences. If the appointer is a person with disabilities he should be allowed modifications and accessibility pursuant to the Equal Rights Law for persons with disabilities.

Who can be appointed as a holder of a power of attorney?

 The holder of a power of attorney must be an individual (who is not a corporation), over the age of 18, who has not served as the holder of a power of attorney for more than three people (unless these are members of his family). A person cannot be appointed as the holder of a power of attorney who has had a guardian appointed for him or who has a durable power of attorney agreement that has been prepared for him himself.

When this is the holder of a power of attorney for property matters, one who has been declared by a court as a bankrupt or one who has been determined by the Bank of Israel to be a limited in severe circumstances client cannot be appointed to the role.

Powers of the holder of the power of attorney

1. The holder of the power of attorney is required to act pursuant to the wishes of the appointer.
2. The holder of the power of attorney is not authorized to carry out certain actions without the explicit consent of the appointer or approval by the court.
3. The duty is imposed on the holder of the power of attorney to safeguard documents relating to fundamental decisions which he has taken regarding the appointer’s affairs and to manage the accounts pursuant to the instructions that shall be given.
4. The existence of the valid durable power of attorney shall appear on all the significant assets such as real estate assets.

Types of affairs that could be incorporated in the durable power of attorney

A durable power of attorney can be imposed, pursuant to the appointer’s desire, on property affairs and on personal affairs, in entirety or in part. A holder of a power of attorney can be appointed for the affairs in the same field or for only part of them.

• A durable power of attorney for property affairs – awards the holder of the power of attorney authority to make decisions and carry out actions relating to the financial assets and undertakings of the appointer (management of bank accounts, financial investments, management of real estate assets or business and so forth).
• Power of attorney for personal matters – the authority to make decisions and carry out actions in regard to all the appointer’s affairs, including medical matters but apart from property matters (handling welfare, provision of daily needs, maintenance of a cultural and religious life style, employment, rehabilitation, choice of location of residence and so forth).
• A durable power of attorney only for medical issues.

The process for preparation of the durable power of attorney

1. The durable power of attorney will be prepared by an attorney, who has undergone appropriate training and has been certified by the Public Trustee for preparation of durable powers of attorney, on a designated online form.
2. The durable power of attorney will be deposited with the Public Trustee. The deposit shall be carried out online by the attorney who prepared the power of attorney or manually by the appointer in the offices of the Public Trustee.
3. The Public Trustee will send the attorney and the appointer a first notice which confirms receipt of the durable power of attorney and thereafter a notice as to deposit or rejection of the deposit.

Every three years from the deposit of the durable power of attorney and until it comes into force the Public Trustee will send the appointer a reminder in order to ensure that he wishes the power of attorney to continue to be in force.

The information presented in this article is general. It does not constitute  legal advice or replace consultation with a lawyer. It should not be regarded as a recommendation or an alternative for law treatment.

The information presented in the English website is partial. For full info please visit our Hebrew website

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