An increasing number of people are establishing a lasting power of attorney, by which they appoint others who will manage their personal affairs, properties, and healthcare decisions in the case of a personal inability to do so. Attorney Mindy Ehrlich from the law firm of Decker, Pex, Levi, certified by the General Guardian to draft a lasting power of attorney, explains how it works, and why it is important to appoint someone you trust for the role.
In recent years since the amendment to the Legal Capacity and Guardianship Law, more clients are turning to lawyers to draft a lasting power of attorney. This is to ensure that another individual will handle their affairs if they lose their capacity for judgment and ability to manage their lives due to various reasons, for example, an accident, stroke, old age, dementia, etc.
The strength of a lasting power of attorney, which is possible from the age of 18, is that the appointer ensures that when the time comes, when decisions need to be made on their behalf, the court will not be the one to appoint a guardian based on its discretion; rather, the appointer will personally determine in advance who they choose to take care of them and manage their affairs at a time when they can no longer make decisions for themselves. This document prevents an individual from endless bureaucratic and legal proceedings necessary for the appointment of a guardian.
A lasting power of attorney is not the same for each person, and is tailored to each individual according to their life circumstances, age, or current or future situation. The document reflects the specific will of the appointer in all important areas of their life: personal matters, property affairs, and medical matters.
Attorney Mindy Ehrlich, at what stage in life is it advisable to draft a lasting power of attorney?
An enduring power of attorney can be drafted from the age of 18 and up, but the question of when to draft such a document is quite individual and varies from person to person. This is because an 18-year-old might already own assets and want to decide in advance, while healthy, capable, and lucid, who will be their attorneys to step into their shoes and manage their life if something happens to them that prevents them from making decisions for themselves. Conversely, it is possible that a 50-year-old with no assets might want to draft a lasting power of attorney to decide in advance who will handle their medical matters and make crucial decisions for them, such as whether to extend their life or not through medical intervention, when their condition no longer allows them to make decisions for themselves.
Awareness of the process has spread among young people who are no longer willing to risk losing their freedom and handing their fate to the court to decide for them. Therefore, more and more young people prefer to draft a lasting power of attorney to determine in advance who will manage their personal, medical, and property matters when they cannot make decisions for themselves.
Can one decide what instructions and guidelines to include in the lasting power of attorney?
There is freedom of choice in the power of attorney document. The appointer can determine who they want to appoint as their attorneys and for which areas of interest, whether the attorneys will act together or separately, and whether to appoint a different attorney for each domain. The appointer can be as detailed as they would like, whether it is an appointer who wants to instruct the attorney on how to take care of their cosmetic and aesthetic needs, an appointer who wants to be taken for a walk in the neighborhood three times a day, how to raise their pet, or an appointer who wants to continue having their tefillin put on every morning. The appointer can decide how they want all their affairs handled, including managing bank accounts, giving loans and gifts for family events, loans and donations within and outside the family, asset management, and more. In their medical matters, the appointer can decide whether they want life-prolonging treatments or not, whether they want to undergo experimental medical treatments, and more. In their personal matters, the appointer can instruct the attorney on how they want their personal matters handled.
What happens if the appointed attorney cannot fulfill their role?
Initially, it is recommended to appoint several attorneys you trust so they can act according to the instructions of the enduring power of attorney and support one another. However, situations may arise where the attorneys are unable to fulfill their role for various reasons, such as being abroad, moving abroad, breach of duty as an attorney, illness, death, etc. To prevent a situation where the appointer is left without an attorney to take care of them, it is recommended to appoint a substitute attorney who will step into the role of the attorney if they cannot fulfill their duties for any reason.
Can the content of the lasting power of attorney be changed or canceled after it has been deposited with the General Guardian?
The legal status of the lasting power of attorney is dynamic. This means that at any stage, even if the appointer has already signed the lasting power of attorney and the lawyer has deposited the document with the General Guardian and the deposit has been approved, the appointer can cancel the lasting power of attorney as long as it has not been activated. It is important to understand that even after the power of attorney has been activated, the process is reversible as long as the change serves the appointer’s benefit and will.
This means that even after it comes into effect, it can be changed if, for example, the appointer’s cognitive condition improves, and they return to a state where they can function cognitively. It is essential to note that after the lasting power of attorney is activated, its nullification will require court approval under the conditions specified by law. For example, if an attorney does not properly exercise the powers of the lasting power of attorney, resulting in harm to the appointer, if the power of attorney was given as a result of exploitation or undue influence, if it was given when the appointer was not competent and capable of judgment, and so on. The request to cancel a lasting power of attorney after its activation can be submitted by the Attorney General or his representative, the appointer, or their relatives.
Why can’t you approach any lawyer?
Only a lawyer who has undergone unique training by the General Guardian and received a special certification can draft a lasting power of attorney. Since this is such a sensitive issue where the appointer entrusts the responsibility for the most important and sensitive areas of their life to their attorney, it is appropriate for the lawyer handling this to undergo special training that prepares the lawyer to deeply understand the field, the sensitivities, the dangers of conflicts of interest that might endanger the appointer’s situation, who is at the mercy of their attorneys, and for the lawyer to fully reflect the appointer’s will and provide the professional and unique service and advice for this document.
A lasting power of attorney is relatively considered an innovative process in the legal world. Consequently, its procedures are constantly being updated. One prominent example is dealing with banks, which is still challenging, as new procedures regarding the implementation of the lasting power of attorney constantly change in relation to the banks. Lawyers who draft lasting powers of attorney need to stay updated on the relevant procedures and in general. My recommendation is to approach a lawyer who deals with family, inheritance, and wills, as their experience can provide an added value of necessary knowledge and sensitivity in such an important process that impacts the individual’s freedom and dignity.