Continuing power of attorney under Israeli law

Posted by on Dec 31, 2020 in Blog, Notariat

Continuing power of attorney under Israeli law 1

Continuing power of attorney under Israeli law

In the current sanitary context and growing uncertainty among at-risk populations, the “Continuing Power of Attorney” has emerged as the legal tool adapted to respond to a new perception that places at the center the right of every person to live their life according to their choices and desires.

Provided for in Amendment 18 to the law on Legal Qualifications and Guardianship Act, 5722-1967 (hereinafter ‘the law’) it is a significant alternative to the classical and somewhat obsolete procedure of appointing a guardian in several areas.

I. What is a continuing power of attorney?

The power of attorney allows each adult with full cognitive abilities to determine who will look after his or her interests in the future when he or she is no longer be able to manage them by himself, so that the power of attorney will allow him to act on his behalf for the accomplishment of future acts when he or she no longer has the full capacity to make decisions concerning him or her.

An enduring power of attorney can cover medical, personal or financial matters- or only some of them. It may also include “preliminary instructions” which will clarify how the principal instructs the attorney to act in the future in the management of his or her interests.

There are currently three devices in the law whose purpose is to assist and accompany a person who is having difficulty in managing his own affairs, according to his choice and will:

  1. Continuing power of Attorney
  2. Decision support
  3. Trusteeship

 “continuous power of attorney” is therefore a new legal provision that came into force on 11 October 2016 as part of Amendment 18 to the Legal Qualifications and Guardianship Act, 5722-1967 (hereinafter ‘the law’).

II. The principal – who can appoint a proxy?

The principal must be an Israeli resident, of legal age, who understands the detailed meaning of the continuing power of attorney, its purposes consequences.

III. Agent – Who can be appointed as an agent?

The law designates the mandatary as a person of trust of the principal who cannot claim numeration for these functions. Consequently, the mandatary must be a natural person, over the age of 18 years of age, not be subject to personal bankruptcy, and not be banned from banking. Other special conditions will be required.

At the international level, it should be noted that according to the provisions of the law, the agent may be a citizen and a foreign resident.

Abitbol-Associes has been confronted on numerous occasions with complex situations in the context of Aliyah of parents leaving their children in France. The latter, mandated by the French court as legal guardians, find themselves obliged to take all the steps upstream in Israel because there is no procedure for the exequatur these guardianship decisions rendered by the French judges.

Moreover, their children who are French citizens and residents can no longer be the legal guardians of their parents, as the Israeli court appoints a state guardian on the spot.

Therefore, the continuous power of attorney is a real alternative to the guardianship procedure to avoiding sometimes time-consuming procedures before the Courts.

 However, it is advisable to appoint an additional representative in Israel to facilitate certain procedures.

IV. Topics that may be included in this procedure

1. Continuing Power of ATTORNEY for property matters – which will provide the authority to make decisions and perform actions related to assets, funds and liabilities, including managing bank accounts, how to invest funds, managing real estate or commercial assets, exercising rights for the principal and more.

2. Continuing Power of Attorney for personal matters – which will provide the authority to make decisions and take actions on all matters of the principal including medical matters and excluding property matters – i.e., for example, the subject of welfare, quality of life, daily needs, food and clothing, maintenance of cultural and religious lifestyle, active community life, housing, routine medical care.

3. A continuing power of attorney that deals only with medical matters can be addressed to a lawyer as well as a health professional – a nurse, a doctor, a psychologist or a social worker.

The power of attorney may include all the above subjects in the same instrument or only some of them.

V. Coming into force

The continuing power of attorney will come into effect if and when the principal is no longer able to understand and make decisions on the matters included in the power of attorney (personal matters, real estate matters, in whole or in part), in accordance with the terms set out in the continuing power of attorney.

The law does not permit a condition to be set that depends solely on the agent’s opinion that the principal is no longer capable of making decisions on his own in order to protect the principal from any abuse of power at a significant stage where his understanding and abilities may be reduced.

These conditions may be in the joint opinions of the agent and another person close to the principal who can testify on the basis of the principal’s knowledge that the principal has reached a stage where he no longer understands, or requires special control by the medical profession.

If the conditions for the entry of the power of attorney are in force, the power of attorney is valid once filed and registered and it will be mandatory, according to the law, to submit a declaration to the general guardian indicating that the said conditions are met, including the notification requirements.

The delivery of the declaration is therefore a sine qua none condition to allow the continuing power of attorney to come into effect.

Upon receipt of the declaration of power of attorney, the general guardian will provide the principal and agent with confirmation that the power of attorney has come into effect.

VI. Cancellation and/or expiration of the act

Cancellation – The power of attorney may be revoked at any time, but only if the principal has not explicitly limited himself in the power of attorney itself. This must be notified to the proxy holder and to the general guardian by mean of a cancellation notice form. The court may also decide to revoke a continuing power of attorney in the event that the attorney has failed his duties and in the interests of the mandate.

Expiration – The power of attorney will expire in many cases:

– If there is a condition determined by the principal in the continuous power of attorney, such as a certain date for its expiry;

– The opinion of the agent who is no longer interested in acting as such;

– On the death of the principal or agent;

– If the mandatory is no longer qualified to hold this position under the law or if there have been circumstances set out in the law, for example: if a guardian has been appointed to him; If he or her has been mandated by virtue of his profession and his license has been revoked, etc.

The agent or his representative must notify the General Tutor of the expiry of the power of attorney.

After receiving the notice of expiry or cancellation, it will be registered in the Guardian’s continuing Power Attorney filing.

VII. Conclusion – Why choose a continuous power of attorney?

A continuing power of attorney is therefore a legal arrangement based on the personal choice of the principal and on family or social relationships of proximity and trust – the principal can choose a family member, a person close to him or a trusted professional who will unconditionally commit himself to protect the interests of the proxy. In this sense, the legislator considered that there was no justification for a permanent control mechanism applied to guardians.

A continuous power of attorney has been created to provide an alternative to the guardianship process where the process is shorter than the time it takes for a court to appoint a guardian. It is also possible to give a power of attorney at any stage of life, even if there is no danger or fear that the person will not be able to make decisions on his own. The power of attorney will only take effect when the attorney is in a situation where he will no longer be able to manage personal affairs.

In this sens, this legal tool has many advantages that can facilitate decision-making by family members and ensure the financial and personal interests of the principal in a sustainable manner.

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Our team consists of both French and Israeli lawyers which allow us to fully carry out a thorough expertise in order to ensure an optimal treatment of each case.