It is necessary and advisable to shape our futures in as detailed a way as possible. The enduring power of attorney – should it be general or explicit?
Adv. Yonathan Kanir || 24.9.19
Roughly two years after the coming into force of Amendment No. 18 to the Legal Capacity and Guardianship Law, which gave legal status and recognition to the enduring power of attorney and the preemptive instructions document, we are witnessing a significant increase in the number of lawyers undergoing training and who are qualified to engage in the subject and in the willingness of the public to be proactive and draw up such a document.
The amendment to the Capacity Law is undeniably a significant revolution. As life expectancy increases and the quality of care improves more and more people will find themselves temporarily or permanently ADL-dependent. However, there are still gaps and uncertainties in the law.
As someone who supports and welcomes the revolution in law and in the absence of a guiding ruling, I shall endeavor in this article to lay the foundations for my position, that other than in exceptional cases, the online document alone should not be considered sufficient.
On the importance of an enduring power of attorney
We are on the timeline, from reaching adulthood until death.
During the first part of that timeline, during the period of "normal" life, when we're healthy and working, we enter into contracts and agreements, as detailed as they may be, to protect our interests. We take out a variety of insurance policies and try to cover every possible contingency. We set up and manage reserves and funds, all in order to ensure that there shall be coverage when needed.
We also know how to prepare for the third period of time, which is the period after death – whether we choose to die intestate or to make a will and control the devolution of our estates after we're gone.
Since April 2017 (the Amendment to the Law) we have a legal option to also determine what will happen to us during the second time period, when we are alive but unable to understand anything and make decisions for ourselves, by stipulating in an enduring power of attorney and the preemptive instructions – who shall take care of us and what instructions shall be given to those responsible for us.
General or explicit?
The lectures and conferences which I have attended since the Amendment came into force, have highlighted the dissonance between two entrenched approaches.
The first approach, we shall define for the purpose of this article as the "general" approach, according to which we need only the online enduring power of attorney form as worded by the Administrator General, so that the consent is sweeping, comprehensive and terse. According to this approach, for example, a husband appoints his wife as grantee to do everything, and this shall be enough to provide a solution in the future for any problem or predicament which arises during the period of incapacity.
My position is represented in the second approach, which I shall define for the purpose of this article as the "explicit" approach.
If we really want to give as broad a solution as possible for the client's needs, to address and consider not only the grantor's wishes but also to the position of the grantee and the grantor's family, then we cannot make do with the technical, online document and rely on generality, since we are concerned that when the time comes, the absence of detail in the online document shall work to the detriment of both the grantor and the grantee.
In my opinion, the online power of attorney is only the body and cannot stand alone without a preemptive instructions document, which is the soul, a document that should in most cases be as detailed as possible, after we have gone through an in-depth process with the client and compiled for him most of the instructions which are commensurate with his lifestyle and outlook.
Why is it necessary to draw up preemptive instructions?
As part of the Amendment to the Law, the legislator created a wonderful legal mechanism that allows a person to give detailed expression to his wishes, to choose and instruct during his life what he shall do during his period of incapacity, through the preemptive instructions document.
In the existing tool at our disposal, in which a person can give instructions, such as a living will, why not try to bring about a situation in which at least 80% (if not more) of a person's wishes shall be explicitly directed, especially since when the time comes he shall already be incapable of expressing them himself?
This approach sees the enduring power of attorney along with the preemptive instructions as having two levels of importance. The first level is with the grantor who is currently determining what decisions and actions shall be taken in all matters related to and affecting him. The second level is the ability of the grantor to give instructions and influence those close to him, and to make his relatives' job easier when he can no longer express his opinion.
For the purpose of illustration, according to the Law, the grantee may be expressly authorized to give gifts of such value as the grantor shall determine up to the amount of 100,000 shekels. This is the language of the Law. The questioner and the court may ask – what are "the "circumstances of the case"? Are the circumstances of the case the same for every grantor? Some people consider a gift of 50 shekels to be a reasonable gift, according to their lifestyle, while for others a gift of 5,000 shekels would be reasonable. Some people are accustomed to giving their grandchildren 2,000 shekels every birthday, and another person may plan to give his daughter a wedding gift worth 150,000 shekels. Do all these come within the definition of "the circumstances of the case" as the legislator intended?
Should my approach be heard and accepted, and the preemptive instructions shall be attached as an integral part of the enduring power of attorney (other than in exceptional cases), then we shall know that we have covered and exhausted most of the possibilities, while giving the maximum protection to the client's wishes and to ourselves, those drafting the document.
The more detailed the preemptive instructions document, the more we can ensure that the person's wishes are expressed in the clearest and most unambiguous way and ensure continuity of concern for the grantor, and no less importantly – for the grantor's relatives, and significantly reduce the involvement of the State in our lives, including in more complex activities.