Enduring Power of Attorney
2017 has brought sweeping reforms in the Israeli law regarding guardianship. Prior to the reform, the legally incapacitated had little or no say in how his or her personal and financial affairs would be managed. Now, with the legal recognition of a document known as an Enduring Power of Attorney (EPA), one can decide who is going to manage his/her finances, his/her health issues and his/her general well-being long before one is no longer capable of doing so.
The EPA avoids the need for the appointment of a guardian by the court. It enables the “Appointer” to give detailed instructions concerning who will be empowered to manage his/her wealth and health (the “Appointee”) and also allows the Appointer to nominate third parties to ensure that the Appointee is faithfully executing the instructions of the Appointer.
The following example illustrates how important and far-reaching this document is: John, 65, happily married with three children, has worked hard to amass a range of assets, including a number of investments, real estate, a share portfolio and accumulated savings. The family attorney has drawn up a detailed “mutual will” specifying how the family wealth will be divided after John’s and his spouse’s demise.
However, what will happen if John, like so many of us, will spend a substantial part of his “golden age” being mentally infirm? Recent statistics show that this is the increasingly reality. Who, during this long period, will manage the family wealth to ensure that well-earned assets will be still there to pay for John’s long-term care and be sufficient to devolve upon future generations?
The appointment of a “traditional” guardian over John – i.e. the wife or child – often spells financial disaster for numerous reasons. For example, most, if not all, of the immediate family may lack the financial knowledge to be entrusted to manage the family assets. Or there may be conflicts within the family among John’s children. Or maybe John simply does not want his children to know the extent of the family assets before his demise.
The EPA is the solution to consider. An EPA enables John, for example, to take the following action: (1) appoint his accountant and nephew to be jointly responsible for managing the assets and to provide detailed accompanying instructions on how to so do; (2) appoint his wife to be responsible for his medical affairs; (3) appoint his middle son to look after his general welfare; (4) appoint his other two children to be the nominated third parties who are legally entitled to receive all information from the persons stated above, their role being to ensure that John’s instructions are accurately and faithfully being carried out when he can no longer care for himself. John will need to ascertain that the Appointee and the nominated third parties agree to act as such.
The EPA is drawn up and signed before a qualified lawyer who has completed a special program conducted by Israel Bar Association (IBA) and is qualified to prepare, advise and supervise the execution of an EPA.
In drawing up this document, the lawyer will normally discuss at length with the Appointer all the issues (financial, family and health) that will affect the text of the EPA. The lawyer drawing up the EPA is prohibited to be the Appointee or nominated third party, thus ensuring that there will be no conflict of interest in the future. After the EPA has been signed by the Appointer and the Appointee, the lawyer then deposits the EPA with the General Custodian’s Office.
The EPA only becomes legally effective when one of the conditions predetermined by John are realized (for example, upon reaching a certain age or upon being declared mentally incompetent by two independent doctors). The EPA can be easily updated and changed.
The Appointee is not required by law to provide yearly reports to the General Custodian’s Office unless it is specifically specified in the EPA.
The EPA is an essential legal tool for anybody concerned with his/her financial and health planning who does not want to leave this in the hands of a court-appointed guardian. Indeed, for many of us, the drawing up of an EPA could be no less important than the drawing up a will – and sometimes, even more so.
Consult experienced legal advisers in each country at an early stage in specific cases.