By: Russell D. Mayer, Adv.
Over the past decades, in the U.S. and other countries, it has become a matter of good practice for individuals to arrange not only for the inevitable in the form of a Last Will and Testament but for management and care for the time when one cannot manage on their own. The documents which people usually seek to obtain, address the following in the U.S.
- financial and property authority when a person is mentally competent as well as once he is no longer mentally competent – the Durable Power of Attorney in the U.S.;
- healthcare decisions for a time when a person is unable to make her own healthcare decisions – the Healthcare Proxy; and
- end of life decisions such as Do Not Resuscitate (D.N.R.) via a Living Will.
Even if you executed those documents in your country of origin, they will be of little use in Israel for several reasons:
- the laws and provisions are different;
- documents signed outside of Israel, in this context, even if they would otherwise be in compliance with Israeli law, would have had to have been signed either at the Israeli consulate or with Apostille certification;
- the Durable Power of Attorney, which grants authority both when a person is mentally competent as well as when she is no longer competent, does not exist in that form in Israel – a regular Power of Attorney in Israel, generally, stops being effective once the person who executed it, is no longer mentally competent;
- under current Israeli law, only the officially recognized documents in the format and signed in compliance with Israeli law, will be recognized in Israel.
Up until May 2017, once a person in Israel was no longer mentally competent, due to an accident, Alzheimer’s, senility or otherwise, a guardian would have to be appointed for the person. The process required submissions to Court, psychiatric verification of the person’s lack of capacity and the judge could appoint whomever s/he wanted to serve as guardian – not, necessarily, according to what would have been the person’s wishes – for those who do not execute the new documents, that would still be the case.
In 2017, Israel took an evolutionary leap forward in addressing the lacunae in the law by creating new documents intended to empower individuals, not only the elderly, by giving them the ability to determine their own destinies with respect to their care and the management of their affairs once they need assistance preserving the independence, dignity and self-respect of those who suffer from diminished capacity. The documents can ONLY be signed while a person is mentally competent – if you wait, it might be too late to do so.
In addition to a properly executed Last Will and Testament, you should consider the following documents:
- Healthcare Proxy: The revisions to the Law adopted a new form of Healthcare Proxy together with the new obligation to file the Healthcare Proxy with the office of the Administrator General. The Healthcare Proxy allows you to choose who will be authorized to make medical decisions on your behalf if, at the time, you are unable to make your own decisions (due to temporary or other incapacity, unconsciousness, in an operation or otherwise). The document must be witnessed by one of 5 professionals (doctor, lawyer, nurse, social worker or psychologist) who certify on the document that the person giving as well as the person accepting the authority, are mentally competent at the time of signing and understood the ramifications of the document. Neither the Healthcare Proxy nor the Ongoing Power of Attorney (item # 3 below), address end of life decisions.
- “Regular” Power of Attorney: This document, which must be signed in the presence of an Israeli Notary, gives the authority to another person to act on your behalf regarding financial/property matters as long as the person granting the authority is mentally competent. It is useful in the event that you become physically incapacitated or out of the country, unable to go to the bank or post office or otherwise manage your affairs at a time when you are immobile.
- Ongoing Power of Attorney: This new document supplements a regular power of attorney as it provides a legal mechanism which fills the gap between not having a regular power of attorney in place/effective and the ultimate appointment of a guardian once a person is no longer mentally capable. The Hebrew name of the form is Yipui Koach Mitmashech which most people translate as Ongoing Power of Attorney while some use the more familiar term “Durable Power of Attorney” but it is NOT the same as the Durable Power of Attorney as that term is used abroad. The Ongoing Power of Attorney comes into effect specifically once a person is no longer fully competent whether due to age, Alzheimer’s, an accident or otherwise. The Ongoing Power of Attorney allows the individual to determine their own future course of care – whether regarding their possessions, person, living arrangements and otherwise. It further empowers the grantor to cancel authority previously given. The intention behind the change is to grant individuals more autonomy in crafting their futures, to preserve their dignity and express their preferences – while the person is still in a position to do so.
An individual may, while still competent, execute an Ongoing Power of Attorney allowing the person to decide in advance:
- under what conditions the authority will become effective (e.g. as determined by an expert, upon a certain event, some other condition or, regarding certain authorities, at a particular date);
- who will be authorized to act at that time on your behalf;
- whether the authority will apply to possessions, the person, medical decisions or even business;
- authorities can be excluded or limited;
- you can address under which conditions you can rescind the authority in the future or whether it would lapse upon a certain condition applying;
- you can choose who would be appointed guardian if or when it becomes necessary;
- whether the proxy holder would be able to commit the individual or require him to undergo psychiatric evaluation or release the grantor from commitment;
- who is to be notified at the time that the authority is being triggered;
- who is authorized to see the details of the Ongoing Power of Attorney;
- appointment of a replacement guardian for guardianship for a third party;
- appointment of a healthcare proxy.
The Ongoing Power of Attorney may only be prepared and executed under the supervision of an Israeli lawyer who was specially trained for this purpose by the Administrator General (“Specially Trained and Authorized Israeli Lawyer”). There are only a limited number of Israeli lawyers who have received the certification. The author of this memo is the Specially Trained and Authorized Israeli Lawyer at our law firm.
- Choosing a Guardian: Yet another new provision in the law allows an individual to designate in advance who would ultimately be appointed as guardian if or when it becomes necessary – the authority in the Ongoing Power of Attorney will usually make the appointment of a guardian unnecessary. This document must also be prepared and executed under the supervision of one of the Specially Trained and Authorized Israeli Lawyers.
- Living Will: The Living Will, or as technically named in Israel as the “Advanced Directive for a Dying Patient” is the document in which an individual can, in advance, make end of life care decisions. It is a detailed document which has numerous choices for an individual to make as to what types of treatments one wants or declines to receive (e.g. DNR) at a time when the patient has been certified as “dying” (akin to under hospice care). The document must include the certification of the patient’s regular doctor as to the medical condition of the patient and the doctor is to explain to the patient the ramifications of the numerous choices available to the patient. Signature on the document must be witnessed by 2 witnesses and filed with the Ministry of Health.
The Healthcare Proxy, Ongoing Power of Attorney and Designation of Guardian must be filed with the Apotropus Haklali (Guardian General’s Office of the Ministry of Justice) and the details are then entered into Israel’s national databank – ready to be accessed by hospitals and implemented when needed.
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This article is not to be considered as a legal opinion. For legal advice, we suggest that you contact legal counsel directly
Russell D. Mayer is senior partner at the Jerusalem-based law firm of Livnat, Mayer & Co. (lmf.co.il) If you have any comments or questions with respect to this article, please contact Russell at [email protected]
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