The Jerusalem Post - The Jerusalem Post Magazine

Now more than ever

-

What is the difference between “continuing power of attorney” and a will? What is a “guardiansh­ip letter”? Why, in just three years, have some 25,000 people already set up continuing power of attorney? Does your prenuptial agreement address a situation of lack of competence?

Now, especially during the coronaviru­s crisis, it is important to choose the family members who will take care of you and make decisions on your matters on a day when you cannot do it yourself. Adv. Aviv Samocha, certified by the Ministry of Justice to arrange a continuing power of attorney and a guardiansh­ip letter document, explains the complex cases and ideas and solutions that everyone must know.

Uɉʍ …÷—ʍ7¤Üªãă nder the new law from 2017, any “sound of mind” person over the age of 18 can set up a continuing power of attorney and determine who of his or her family members or relatives will make the decisions regarding his or her personal, medical and property matters on the day he or she cannot do it themselves. So it is no wonder that 25,000 people have already utilized it and have set up a continuing power of attorney.

It is important to know that this is not a will that comes into effect after death;

continuing power of attorney does not refer at all to the distributi­on of assets after death, but to the management of the personal, property and medical affairs of a person who, God forbid, will be unfit to do it him or herself because of old age or an accident.

Pre-select the power of attorney

A person who sets up a continuing power of attorney (referred to in the law as “the appointor”) can determine in advance who of his or her family members or relatives will be the power of attorney and make decisions on his or her affairs on the day he or she is unfit to do so. These powers of attorney are appointed according to his or her choice without having to apply to the court.

Adv. Samocha adds: “The continuing power of attorney is a very flexible document, it is possible to set a number of family members to make decisions together or each person individual­ly and even to decide that in certain matters a decision will be possible only by a majority or even only by all members of the family, for example, on bank transactio­ns of a certain amount or on the choice of a place of residence, and alternativ­e power of attorney can also be determined in the event that a particular family member is unable to fulfill his or her duties. The appointor can leave pre-conditions in the continuing power of attorney such as: where to live (at home / with a caregiver / sheltered housing / with a family member); which medical treatments to receive; and how property and funds will be managed; so that the family members must follow the instructio­ns given by the appointor in advance. “

Adv. Samocha emphasizes that family members must act only for the benefit of the appointor. Adv. Samocha brings a case in which the grandmothe­r funded the grandchild­ren’s education and specifical­ly asked in the power of attorney that her family members would continue to pay for her grandchild­ren’s education on the day she could not do it herself, and in another case, where the grandfathe­r explicitly set amounts for wedding gifts, bar mitzvahs and grandchild­ren’s birthdays.

“Anyone whose family members did not have a continuing power of attorney, or were unable to conduct a continuing power of attorney and had to be appointed as guardians by the court, will at least be able to make a guardiansh­ip document in which they can express their wishes about their replacemen­t individual and how to treat a person of whom a guardian was appointed - this document is called the ‘guardiansh­ip letter.’”

Adv. Samocha says that the most complex situations are usually setting up a continuing power of attorney for spouses in the second stage of their marital lives. “From my experience, a prenuptial agreement most often relates to cases of a break-up and death, and does not relate to cases in which a person is alive but unfit. Who will finance the spouse’s household upkeep or expenses, and will the spouse be appointed at all to make decisions in his or her case or only the children? How will the children manage the joint account with the spouse? These issues can and should be addressed within a continuous power of attorney.

Goes into effect when necessary

After setting up the continuing power of attorney, it has not yet come into effect - it will take effect only after an expert opinion states that the person who made the continuing power of attorney is no longer sound of mind. And in order to facilitate family members, from June 2019 the power of attorney can apply for the power of attorney to be applied, attached with the expert opinion, online through the Administra­tor-General’s system, without being required to physically go there, pay a fee or apply to the court. But this is only if a continuing power of attorney was made by a lawyer authorized to do so.

On this topic, Adv. Samocha tells about the case where a client feared that his family would rush to determine that he is unfit and therefore requested that, prior to the effectiven­ess of the continuing power of attorney, members of the family would be required to get the opinion of two different experts stating that he has lost his competence to be able to make decisions in his matters; or about the case where the client appointed his nephews as powers of attorney and sought to inform his brothers before applying the continuing power of attorney, in addition to getting an expert opinion. In conclusion, for those who are on the fence, now is the time to take action. As part of dealing with the coronaviru­s: As of March 23, 2020, a continuing power of attorney may be edited and signed by an authorized attorney in a video call without having a physical meeting, valid until May 31, 2020

 ??  ??

Newspapers in English

Newspapers from Israel