Guardianship or enduring power of attorney? This is how you know what to choose

Enduring power of attorney is a new legal tool that has many benefits - and does not accompany the difficulties that come with guardianship through the court

The great fear of many of us is that a day will come and the brain will no longer function as we are used to and then we will be at the mercy of the other. Continuous power of attorney is a new legal construct that allows us to control what will happen, if and when this day comes. The enduring power of power enables each person to determine his or her own future and to decide, while clear, how his property will be managed in the day and how his health and personal affairs will be handled.

The dilemma facing many of us is whether to prepare in advance and prepare a lasting power of attorney or perhaps to trust the "guardianship institution" in the event that God forbid we are unfit. All answers to all questions, in this article.

(Illustration: ShutterStock)

Signature of documents (Photo: ShutterStock)

What is an ongoing power of attorney?

Continuous Power of Attorney is a new legal tool whereby every mature person (mentally) capable of making decisions, may determine who will handle his or her affairs at a time when, God forbid, he is mentally unfit to understand and / or take actions and / or make decisions in his or her life. Thus, any qualified person can determine: who will be responsible for his or her personal affairs, who will determine his medical affairs and who will handle his financial affairs and in what way they would like to do so. For all of these you can appoint one person who will be responsible for everything or different people who will take care of each other in the matter. All according to the will and choice of the power beautician.

The enduring power of emphasis places emphasis on respecting one's will while hearing one's own and making decisions. This is actually a "will to life".

Guardians What is?

In fact, until recently, the "guardianship institution" was solely responsible for dealing with the various matters of people who had lost their mental capacity. In a situation where a person was required to be a guardian, his relatives were required to contact the court on the matter. The guardian appointed by the court, was responsible for managing the affairs of the person who became ineligible (called: "privileged" - this is the legal term for a person appointed as guardian).

As mentioned until recently, guardianship was the only option for managing the affairs of a mentally incompetent person. Today, after the amendment to the law, the continued power of attorney is another option.

What are the differences, then, between the guardians and guardians for lasting power of attorney?

When a person loses his or her qualifications, his or her relatives (or other relatives) must apply to the court to request a guardian for him. A guardian appointment process is a legal process for all intents and purposes and even requires legal representation. When the "guardian identity" is actually not under the control of the person who loses his legal competence since it is no longer qualified to make decisions. Most often, the appointment as guardian is closest to him: a child, spouse or relative. To be appointed as a guardian, the applicant must pay a fee and submit a written request to the court on the application to include an affidavit, reasons and attitudes of family members, medical opinion and more - all in accordance with the court's requirement. The guardian must obtain his appointment from the court and only thereafter, he will serve as guardian and take the necessary actions. Of course, everything will happen subject to his periodic reports to the Attorney General's Office.

Continuous power of attorney, on the other hand, is empowered to be appointed in accordance with the express conditions and guidelines set forth in the power of attorney. Thus, the power of the power itself determines in what state the power will take office, who is the power it wants to appoint, what matters it wants to appoint and more. The power beautician can even prescribe precise instructions in the power of attorney regarding how the beautified acts are performed both on the medical, the physical and the personal. The power of attorney must be signed by a lawyer who has undergone special training. The power of attorney is deposited with the guardian-general and is essentially "dormant" until the date of his entry into force.

The default power of attorney (i.e., unless the parent is otherwise authorized) is the submission of a medical opinion to the General Guardian. Otherwise, a person can, for example, order that it take effect when a person fires the power of attorney, announces that the power beautician is ineligible and that the power of attorney must take effect. However, this is not a legal process like appointing a guardian (does not require the payment of a fee and / or a court application) but rather a bureaucratic process. In fact, the General Guardian checks that the conditions in which the power of attorney is in fact are met and that the willful power of the power is consistent with the existing factual situation which was brought to his attention.

Asset breakdown, accountability and reporting

When deciding whether or not we are interested in guardianship, it is precisely our ongoing power of attorney that we should also consider when dealing with the "reporting to the guardian", ie if and as much as eight to a guardian, that person will be required by law to report to the guardian on the covered assets. Thus, the same guardian will have to submit to the general guardian "Perta" - detailing his confidential assets, including his duties. In addition, the Custodian must submit periodic reports to the General Custodian of his actions, all in accordance with the law and the General Custodian requirements.

In contrast, a continuing power of attorney can be chosen because the power of attorney will not be subject to the general guardian and will not be required to report.

Most often, people who are appointed with the power of continuous power of attorney, rely on the power of the same gender when in normal things in a person-child relationship or another relative who prefers to avoid regular reports to the general guardian when he does not want to cover the role of supervisor but rather to simplify For him the role and make it easier.

Another consideration to consider - "Investment Management"

In guardianship, the guardian is obliged to invest all the funds and property of the privilege that does not require regular consumption, in accordance with the clear procedures and instructions set out in the legislation or in accordance with the instructions of the court.
Continuous power of attorney, on the other hand, the power of attorney will act in accordance with the power of directive only as provided by the continuing power of attorney and is not required by law or court directives (except in very specific cases enumerated in the law such as a real estate transaction requiring court approval).

At the same time, power of attorney is given the option (which is not mandatory) to add a "knowledgeable person", that is, a person whose power is empowered to report decisions or actions on matters of power of attorney and under the terms defined by the nominee.

The lawyer as a "gatekeeper" in continuous power of attorney

The lawyer does the power of attorney, a major role no less important as he serves as a kind of gatekeeper, making sure that the power of attorney is done properly. For example, "without exerting pressure or undue influence on the beautician." The lawyer must make sure that the appointing person fully understands his or her application, the nature of the power of attorney and its consequences. In addition, the lawyer must explain to the mayor all the legal alternatives available in the law, including the various implications of his choices in the power of attorney, the matters that may be included and so on.

It should be noted that only lawyers who have been trained by the Ministry of Justice are legally entitled to do a power of attorney.

Signature of will (Photo: ShutterStock)

In conclusion

We have therefore seen that continuous power of attorney is a legal tool that allows for flexibility and advance planning in case a person loses his legal competence and does not require supervision by the court and / or the general guardian, but is based on the assumption that when there is a trust between the power and the power of attorney ( This is such a closeness between people whose relationship and trust not only does not require the establishment of the establishment, but it can also affect the whole thing.) Thus, the legislator gave us the opportunity to relieve the power of the power and not burden it with unnecessary bureaucracy while still providing protection. And the restrictions that exist in the law for the maintenance of the nominee in the eyes of the legislator are of the highest value John of human dignity and the will of the individual. As mentioned above, the continuing power of attorney does not require repeated and repeated request to the court which requires Let's not forget though legal representation trailer carries financial costs.

* The foregoing does not constitute legal advice, opinion or substitute for legal advice with an attorney, the above is only a general and non-binding description of the issues. In any specific case, it is advisable to seek legal advice from a lawyer.

Adv. Efrat Dror

• Attorney and Notary Efrat Dror is involved in commercial law, corporate law, contracts, real estate law, financial agreements, wills and specializes in continuous power of attorney.

• Her many customers praise:

"Attorney Efrat handled me with an old case for over 20 years with the Administration, other offices valued it at much higher cost and long term care. Efrat did this in a short time and professionally. In addition, she represented us in both the negotiation phase and the legal and registration process in real estate sales and voluntary liquidation. Company "

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