In 2017, the Legal Capacity and Guardianship Law was amended in Israel to enable individuals to draw up an enduring power of attorney that will come into effect if or when they become incapacitated. Guardianship and an enduring power of attorney are two legal tools that allow for the appointment of an individual to take care of another person’s affairs when that person is no longer capable of taking care of him or herself and of managing his or her affairs independently.
In these instances, when a person becomes incapacitated, a guardian may be appointed or an enduring power of attorney that the person signed when he or she was still of sound mind may be activated. An enduring power of attorney has many advantages over the appointment of a guardian. In this article, I will review some of the key advantages.
As stated, the two abovementioned legal tools enable another person to be authorized to act on behalf of an individual who is no longer capable of taking care of him or herself. The amendment to the law enables individuals to draw up an enduring power of attorney, which will come into effect if or when the grantor becomes incapacitated. Up until the amendment, it was only possible to draw up a general power of attorney valid for only as long as the grantor was of sound mind. As soon as the grantor lost mental capacity, the power of attorney expired. Under these circumstances, the only option was to petition the court to obtain an appointment as a guardian.
One of the major advantages of an enduring power of attorney over guardianship is efficiency. The appointment of a guardian is a long and cumbersome process. A petition must be filed with the court, and the opinion of a psychiatrist or other relevant professional expert must be attached to the petition, attesting to the person’s lack of cognitive capacity and inability to independently manage his or her own affairs. (Such a person is called “a ward.”) During the hearing of the petition, the court will examine the suitability, qualifications, and capability of the person petitioning to be appointed as guardian; consider the positions of the ward’s family; and appoint an aid from the welfare office in the ward’s residential area. These proceedings require the investment of multiple resources (time, lawyer’s fee, and more).
As opposed to this, the activation of an enduring power of attorney is much quicker and easier. The grantor can define in advance under what conditions the power of attorney will come into effect, such as the presentation of an opinion in conformity with the Legal Capacity Law (the default) or any other condition the grantor chooses. When the conditions are fulfilled, and supporting evidence of this is presented, the process is concluded easily.
For example, individuals can decide that the family physician’s recommendation is sufficient. When this condition is fulfilled, the appointee goes to the offices of the Administrator General with the power of attorney and the family physician’s aforesaid recommendation, and the Administrator General validates the enduring power of attorney on the spot. This enables enormous savings in time and resources. The power of attorney comes into effect without requiring the court processes of examining the appointment, examining the qualifications and capability of the appointee, and considering the positions of the relatives, all because the grantor appointed his or her agent in advance in the enduring power of attorney.
Another element that makes the enduring power of attorney more efficient is that there is no need for supervision. Guardians are subject to supervision by the office of the Administrator General and must submit various reports according to that prescribed in the law. With an enduring power of attorney, the agent can be released from this obligation and the enduring power of attorney can state that no supervision by the Administrator General is needed (supervision that is often cumbersome, sometimes overly so). However, in both scenarios, when a guardian is appointed and when an agent is appointed, they must keep precise ledgers and records of all of the income and expenses of the ward/grantor.
It is important to note that the Administrator General’s supervision is needed to protect the interests of a person who was appointed a guardian. However, when an agent is appointed through an enduring power of attorney, these interests are usually protected by design, since, in most instances, the grantor usually chooses his or her agent based on a relationship of closeness and trust.
Additionally, in order to eliminate possible risks and ensure an alignment of interests, it is possible and even recommended that the enduring power of attorney also name an additional person who must be kept abreast and receive reports of the agent’s actions in real time or immediately thereafter, thereby ensuring a mechanism of close supervision.
An enduring power of attorney also enables individuals to pre-appoint a number of agents or an alternate agent, in case the original agent cannot continue to fulfill his or her role, as well as to define the interactions between the agents. This is far more efficient than the procedures involved in replacing a guardian, where there is no other option but to petition the court once again to appoint a replacement guardian, in which case the entire process of examining the suitability of the guardian must be repeated.
In terms of a person’s autonomy and control over his or her life, the appointment of a guardian is considered a more extreme course of action than drawing up an enduring power of attorney. This is because a guardian is delegated nearly absolute control over the ward’s person and property, and sometimes, if there is no close friend/relative who wishes to and agrees to be appointed as guardian, the court may appoint an NPO or a stranger as guardian.
On the other hand, with an enduring power of attorney, individuals can control the future course of their lives, can oversee how their affairs will be handled, and can protect their own interests. When drafting an enduring power of attorney, individuals can devote a lot of thought into mapping out their future in advance, customizing the document by defining a variety of mechanisms that meet their unique requirements according to their viewpoints and needs, in a way that guarantees all matters important to them are handled according to their wishes.
Their enduring powers of attorney can refer to the volume of assets, as well as issue instructions with regard to future events, the giving of gifts and loans, moving to another residence or to assisted living, medical care, etc. The agent is obligated to follow the instructions in the power of attorney, to the extent that their fulfillment is possible under the circumstances. Please also note that an enduring power of attorney expires on the date the grantor passes away.
It is true that a guardian is also obligated to act in the best interests of his or her ward. However, a guardian is appointed only at the stage when the individual needing a guardian is already incapable of making his or her own decisions and expressing his or her wishes and position on any matter for which a decision must be made. These disadvantages are quite evident when a stranger is appointed as guardian.
Furthermore, an agent will receive a fee only if the enduring power of attorney defines a fee and the rate of the fee in advance. As opposed to this, a guardian may request a fee according to the rate prescribed in the law.
Another legal tool that the amendment to the law provides is “preliminary guidelines.” If individuals do not have a person whom they can appoint in an enduring power of attorney, they can draw up preliminary guidelines and petition the court to appoint a guardian according to the principles outlined in this document. The main advantage is that individuals can include instructions, requests, and wishes in the preliminary guidelines for the guardian to be selected by the court. The preliminary guidelines for a guardian can refer to the individual’s personal welfare; daily needs; place of residence; health and medical matters; physical, emotional, and social needs; and economic affairs, such as the handling of all assets, money, and liabilities. When a guardian must be appointed, the courts will be diligent about appointing someone suitable who is compatible and can fulfill the requirements and guidelines of the ward.