These days many people are inquiring about the use of the legal instrument called “Continous Power of Attorney” (hereinafter – “CPA”), it’s drafting and implementation.
CPA is a legal instrument which came into effect in April 2017 in accordance with Amendment 18 of the Legal Capacity and Guardianship Law – 1962, the amendment being enacted a year before. The aim of the amendment was to permit an individual, while still possessing the legal capacity to do so, to decide who will manage his various matters when he will no longer have the legal capacity to do so himself. In other words, a person can predetermine who will be his or her legal guardian when such is required in the future. The person appointing his guardian is called “the Appointer”, whilst the person appointed is of course “the guardian”. The guardian, who must be a minimum of yrs. Old, must consent to his appointment, and if he is to manage the appointer’s property matters, he cannot be someone who has been declared bankrupt or who provides a personal service to the Appointer, such as a lawyer, accountant, a social worker etc., (the aim being of course to reduce the possibility of a conflict of interests), unless said service provider is a family relative of the Appointer. The CPA can relate to property matters, personal matters and health issues (other than those health issues covered by the Law of a Patient nearing Life’s End – 2005), for which a specific document must be signed in the presence of an authorized medical team representative. The Appointer is entitled to appoint a number of different guardians for the same and/or different matters, and can also predetermine their decision making process.
The CPA was enacted in order to solve several issues. First and foremost, the amendment allows for an individual, whilst still in good mental health, to decide who will be his legal guardian/s, contrary to the situation prior to the amendment whereby, after the fact, the family was obliged to file an application with the relevant court requesting that a guardian be appointed. Such a process is not only lengthly and costly, but at times caused friction within the family over the questions of who would be appointed to be the legal guardian, which matters he or she would handle, what fees would be paid to the guardian, and other such questions, with the potential to raise issues within the family. Such potential points of conflict can be easily resolved through the instrument known as CPA.
Secondly, as referred to above, the process of having the courts appoint a guardian is a long, drawn out and costly one. The application must be filed with the relevant Family Court together with a social worker’s report or a psychogeriatric’s medical opinion, a copy of the application is forwarded to the Public Guardian’s Office associated with the Ministry of Justice, who’s responsibility is to advise the court with respect to said application. The Public Guardian may request additional documents from the applicant and may also request the input of the other family members, which can of itself also be a cause for friction and provoke a situation in which each family member attempts to sway the court’s decision in his or her favour. In the event that the family cannot reach agreement, the Public Guardian may advise the court not to appoint a guardian from within the family but rather a Third Party who has no connection to the family. The existence of a designated guardian ordained in advance via a CPA would of course negate the necessity of filing a Guardian Application with the courts (unless of course the CPA itself was deemed to be flawed by a court of law). A CPA must be deposited with the Public Guardian’s Office where its legal conformity is either accepted or returned to the appointer’s lawyer for amendments, which of course makes raising legal objections to the authenticity of the CPA by a family member at some later date quite difficult. No payment is required to deposit the CPA with the Public Guardian’s Office. It will further be noted that only those lawyers who have passed a special course administered by the Ministry of Justice are qualified to draft a CPA and file it online with the Public Guardian.
Thirdly, the drafting of a CPA is generally significantly less expensive than filing an application with the courts to appoint a legal guardian, with the differences reaching tens of thousands of Shequels in those cases in which the court application is complicated, particularly of course when family feuds arise. In contrary, the drafting of a CPA, if its terms are not too complicated and complex, should cost a few thousand Shequels.
In the words of the Ministry of Justice – “the amendment represents a new social
contract with respect to those people with disabilities, entitling each individual to live
his life according to his choices and will. This view emphasizes the capabilities of the
person and not his disabilities, and recognizes the responsibility of the State to enable
each person to maximize his abilities to develop support, defense and assistance
systems in the event that his or her legal capacity has been impaired for any reason,
whether on a temporary or permanent basis”.
A CPA comes into force only when the Appointer is no longer capable of handling his
own affairs. A majority of those lawyers authorized to draft CPA’s recommend that
this decision be left to the Appointer’s family physician or a psychogeriatric’s medical
opinion, following which the Guardian submits an affidavit to the Public Guardian’s
Office stating that the CPA is now in force, attached to which is of course the
aforesaid medical opinion. In my opinion, the submission of a medical opinion with
respect to the Appointer’s mental state can also serve to reduce tensions in the family
with respect to the necessity of employing the CPA. It will further be noted that the
Appointer can also predetermine the conditions under which the CPA will cease to be
valid, ensuring his future sovereignty.
A CPA is suitable for any person who desires to predetermine their future economic/
personal/medical situations whilst they still have the mental capacity to do so. The
CPA can be executed during one meeting extending for a couple of hours with a one
time payment.
To receive a quotation to draft a CPA from Advocate & Notary Jordan Barak,
who is very experienced in the matter, including having the CPA uploaded
to the Public Guardian’s official website, please inquire at our offices at 28
Machaneh Yosef Street, Tel – Aviv, or 2 Atlit Street Petach Tikva, or call us at
077-4401972.