Continuing Power of Attorney

A Continuing Power of Attorney (CPOA) is a legal tool which enables a person to set forth the principles and rules for managing his affairs in a situation in which he may no longer be able to do so, mainly due to cognitive decline.

In Israel, until 2016, the only available way to the handle the affairs of an incapacitated person was the appointment of a guardian.

Guardianship, which remains the only option for handling the affairs of any incapacitated person who has not executed a COPA, has several disadvantages:

• It does not take into account the incapacitated person's wishes and needs, nor does it allow such person to express their will as to the guardian's identity or the handling of their financial or personal affairs;
• Guardians are required to file various reports with the government;
• Guardianship is subject to rules that may greatly complicate the guardian's functioning and hence the ward's life;
• Various fees are required;
• The process of appointing a guardian requires the intervention of the state, and is often obtained only in times of emergency, resulting in unnecessary aggravation and procedures.

In 2016, Israeli law was revised to enable any person to express their requests, values ​​and special needs so that these become effective in situations of incapacity. Any person, as long as they are cognitively able to make such decisions, can determine in advance who will take care of their affairs and how their affairs will be handled in the event that their mental condition change and their judgment be impaired.

Creating a CPOA in due time, presents Principal with many benefits and advantages:

• The Principal has broad discretion to appoint one or more Agents, determine whether they will act jointly or separately, what will be the scope of their respective powers and responsibilities, how to resolve potential Agent disputes and what compensation, if any, will be paid to an Agent (other than reimbursement of expenses to which an Agent is entitled in any event). In addition, the Principal may appoint substitute Agent(s) in the event that the former no longer wants or is able to serve.
• The Principal may appoint individuals who will be entitled to receive information from the Agent or from third parties about the Agent’s actions and decisions (or name those who will not receive the same), and may even determine that the state will supervise the Agent.
• The CPOA may cover "financial matters", i.e., handling of assets, finances, obligations or rights of the Principal and/or "personal matters." Personal matters include the day-to-day needs of the Principal, their health, physical, mental, religious, or social interests and in general their personal well-being.  A CPOA dealing exclusively with health matters is also an option.
• The Principal may grant the Agent full discretion to make decisions, or may give instructions as to the content of the decisions to be made on various subjects. For example, the Principal can determine who will be the preferred physician, preferred investment strategies, whether his home will be rented or sold, or that he will continue to live in it as the preferred place of residence, even in the event of Principal changes in health.

There are also limitations on the authority of the Agent, such as that he may not act upon Principal instructions that may prove harmful to the Principal or illegal. In such case the Agent may request guidance from a court of law.

A CPOA requires a lawyer’s attestation. Such lawyer must have completed a specific training program by the government, and the list of qualified attorneys appears on the website of the Guardian General in the Ministry of Justice.

There are detailed mandatory procedures for issuing a durable/continuing power of attorney. These include at least two meetings of the Principal and the lawyer, one preliminary, and the other for the purpose of executing the CPOA; the lawyer must meet with the Agent (who must agree to serve as such). The lawyer must explain to all involved the implications of making a CPOA and the terms and conditions imposed on each of the relevant parties, and to obtain the information required to draft the CPOA in accordance with the Principal's instructions. In addition, the lawyer must be convinced that both the Principal and Agent understand the meaning of CPOA, the significance and the results of executing it including the mechanism that shall govern the entering of the CPOA into effect.

We urge you to consider executing a CPOA, as it can provide some certainty and clarity in otherwise complex situation,  and will prove significant for the Principal and his closest circle.