November 1, 2016
Authored by Moshe Kuperstein, Adv., and Mirit Reif, Ad
We have recently been approached by our clients to explain the relevant issues when giving one the “power” to make choices for another, and the legal aspects this entails. Therefore here is a short summary to hopefully clarify some of the issues that can be brought up.
There is a difference between appointing someone to act as your power of attorney and appointing him/her to act as your guardian.
Power of Attorney
Appointing someone to act as your power of attorney gives her the authorization to act on your behalf regarding issues that involve a third party. There are two types of powers of attorney that one can grant: a special power of attorney, which is granted for a specific act or limited to a specific time, and a power of attorney that is unlimited to all legal actions, usually given to an attorney.
This authorization can be given to any person you want and, in general, there is no need to sign the power of attorney in the presence of a lawyer or a notary.
Notarized Power of Attorney
There are two kinds of powers of attorney that do need to be signed in the presence of a notary and the signature needs to be verified by the notary. This is called a Notarized Power of Attorney.
One is a general power of attorney for unlimited matters (legal and non legal related), and the second is the power to execute real estate transactions that need to be registered with the Registrar of Land.
Both of these power of attorney forms need to be prepared by a notary who also needs to verify the signatures. However, is important to note that if one appoints a lawyer as a power of attorney, in order to conduct a real estate transaction, it does not need the verification of a notary.
Medical Power of Attorney
According to Israeli law, in order to medically treat someone she needs to give her consent to the treatment. Unfortunately, one can fall into a situation where one needs medical treatment but is medically incompetent to consent/object to the treatment.
A Medical Power of Attorney is a legal instrument (according to section 16 of The Patient's Rights Law) that allows you to select the person that you want to make healthcare decisions for you if and when you become unable to make them for yourself. The person you choose is representative for purposes of healthcare decisions only. It is meant to deal with situations that you cannot predict. The Medical Power of Attorney allows you to pick the person that you trust to make these kinds of decisions when you cannot make them yourself. This power of attorney will save the need for the court to appoint a guardian in order to make medical decisions on your behalf.
Guardianship
The institution of guardianship is meant to avoid situations in which people who cannot manage their own affairs are left without protection. This is a legal procedure whereby the court appoints a person or an entity to care for that person (a “ward of court”). A person may not appoint a guardian for themselves. A court determines if someone is unable to handle her own affairs and appoints a guardian.
A court may appoint a guardian to represent the ward for all legal and other matters, according to the authorities defined by the court, and the guardian always has to have the ward's best interest in mind.
The court may appoint more than one guardian for the ward and it can decide if they manage all decisions together or if each guardian is in charge of a different issue (medical / wealth / legal issues). Parents are the natural guardians of their minor children (under 18 years old). The court will appoint the person/entity that he feels is the most suitable candidate under the circumstances. When appointing a guardian for a minor the court will prefer to appoint a relative of the minor.
According to Israeli law, the following may be appointed to be guardians:
- Individuals - Anyone, including the ward's spouse, family member, lawyer, or anyone else.
- Corporation - Institution, foundation, non-profit organization, etc.
- Guardian General - The Guardian General is a position in the Ministry of Justice responsible for all issues pertaining to guardianship. The law allows the Guardian General to be given guardianship over an individual ward.
- A special committee for issues of guardianship for Holocaust victims was established to serve as a guardian for those who require it due to trauma caused by the Holocaust and its aftermath. The committee is composed of a representative from the Ministry of Health and a representative from an organization that handles issues related to Holocaust victims.
Submitting the request:
- A request for guardianship may be submitted by a spouse, parent, or other family member, as well as by the government legal advisor or her representative.
- A written request must be submitted to the family court in whose jurisdiction the ward is located.
It is important to note that by appointing a guardian you revoke a person’s free will to make and act upon his own decisions, therefore this extreme measure should be taken only when this is the only option left to protect the ward.
The content of this article is intended to provide a general guide to the subject matters and is not a substitute for legal consultation. Specific legal advice should be sought in accordance with the particular circumstances.
Moshe Kuperstein the seniot partner of Moshe Kuperstein Law Firm. Mirit Reif is a partner at Dave Wolf & Co. Law Firm.