The Regulation, Implications, and Challenges
Amendment No. 18 to the Legal Capacity and Guardianship Law, 1962, which came into effect in October 2016, brought about a revolution in the perception of relations between the state and the citizen. Instead of the state previously serving as a “patron” responsible for making decisions on behalf of those who lost their capacity, a new mechanism was created – the enduring power of attorney – which allows a person to determine for themselves who will handle their affairs and how, while still legally competent.
This move expresses an advanced modern social and legal concept that views the individual as an autonomous entity and not as a subject dependent on the state’s benevolence. This is an important step in strengthening the right to autonomy and human dignity, and in creating a legal framework that respects the individual’s will even in situations of incapacity.
Over the years following Amendment 18, several amendments and expansions were made to the law and regulations designed to strengthen the practical regulation of the enduring power of attorney. Among other things, for example, certain authorities were transferred from the courts to the General Guardian, with the aim of streamlining the process and reducing systemic burden. These amendments continue the trend of moving away from the traditional paternalistic model and establish a flexible, efficient, and person-centered approach – one that balances individual independence with the state’s responsibility to protect against exploitation and harm.
The Legal Framework and Its Development
The statutory basis for the enduring power of attorney mechanism is found in Chapter Two of the Legal Capacity and Guardianship Law. Alongside the law, appropriate regulations were also published that define how the document is prepared, deposited, activated, and expires.
An enduring power of attorney is prepared by an attorney who has undergone dedicated certification for this purpose, in order to prevent exploitation of the principal’s condition and to ensure that they fully understand the document’s meaning, validity, and legal implications.
Key Advantages
Liberation from paternalistic conception and preservation of personal autonomy – The enduring power of attorney returns control to the individual and reduces their dependence on state institutions.
Establishing a personally tailored decision-making mechanism – Enables early and precise planning of how decisions will be made, including defined areas of responsibility for each attorney-in-fact.
Reducing dependence on judicial intervention – The document becomes effective upon loss of capacity, without the need to appoint a guardian.
Maintaining family stability and preventing conflicts – Pre-written instructions reduce disputes among family members. Additionally, the bureaucracy associated with court-appointed guardianship is significantly reduced along with the expansion of powers granted to the attorney-in-fact.
Strengthening the citizen’s sense of control and security – A transition from a “patron” model to a state partner, allowing the individual to plan their future with dignity.
Choosing an Attorney-in-Fact – The Heart of the Arrangement
In most families in Israel, the enduring power of attorney is prepared within the family unit – with spouses appointing each other and their children. This natural choice stems from trust and emotional connection, but it requires deep thought and precise arrangement.
In many cases, children find themselves facing moral and practical dilemmas in the future – how to make decisions concerning parents, especially when dealing with complex medical matters or financial decisions involving managing an active business. Therefore, at the document preparation stage, it is important to have an open and in-depth conversation between the principal and the attorney-in-fact (and additional family members as relevant). In this conversation, the principal’s wishes, values, desired boundaries of discretion, and the manner in which they would want decisions made regarding their affairs should be clarified.
Additionally, it is recommended to establish organized decision-making mechanisms – for example, joint decision-making by multiple attorneys-in-fact, majority vote decision, or referral to an external professional party (doctor, accountant, family counselor) in cases of dispute.
A combination of open family dialogue with a well-drafted document ensures that the attorney-in-fact will act in the future from a deep understanding of the principal’s will and out of loyalty to their spirit, not just the letter of the law.
Challenges and Practical Recommendations
Understanding and informed consent – It is essential to ensure the principal understands the document’s meaning and consequences.
Precise drafting of advance directives – Care must be taken with clear and detailed language that will reduce future interpretation.
Periodic updates – It is recommended to review the document once every few years and verify alignment with personal, family, or financial changes.
Adaptation for international cases – When the principal has assets or family abroad, the document must be adapted to foreign law.
Choosing an attorney-in-fact – A trustworthy person with emotional and managerial capability should be chosen, according to the scope of defined powers.
Conclusion
The enduring power of attorney is one of the most prominent expressions of the transition from paternalistic policy to a regime of partnership and mutual respect between the citizen and the state. It allows every person to determine how their life will be managed if they lose capacity, and to ensure that decisions regarding their personal, medical, and property matters will be made with respect for their will and values.
The significant advantage of this arrangement lies in the fact that the attorney-in-fact operates with much greater flexibility and convenience compared to a guardian appointed by the court. The attorney-in-fact enjoys broader powers and is not required to submit periodic reports or requests for approval of routine actions – unless otherwise specified in the document. This creates a real disconnect from the institutional patron: responsibility passes from the state to the person’s close and personal circle, in a manner that expresses trust, freedom of action, and mutual responsibility.
From a practical perspective, this is an enormous advantage for many families – and particularly for children appointed as attorneys-in-fact. Instead of dealing with bureaucracy, reports, and burdensome regulation, they can simply make decisions, act in real time, and continue with their lives, while preserving the parent’s dignity and wishes. This flexibility is the beating heart of the revolution – a transition from bureaucratic management to human, efficient, and empathetic management.
List of Sources and Additional Information
Legal Capacity and Guardianship Law, 1962 – On the Nevo Legal website – https://www.nevo.co.il/law_html/law00/70325.htm
Legal Capacity and Guardianship Regulations (Enduring Power of Attorney, Advance Directives to Guardian and Expression of Wishes Document), 2017 – On the Legal Wikitext website https://he.wikisource.org/wiki/תקנות_הכשרות_המשפטית_והאפוטרופסות_(ייפוי_כוח_מתמשך,_הנחיות_מקדימות_לאפוטרופוס_ומסמך_הבעת_רצון)
Ministry of Justice – The General Guardian https://www.gov.il/he/departments/general/continuous_power_of_attorney
National Insurance Institute Website – Information on Enduring Power of Attorney https://www.btl.gov.il
Kol-Zchut Website – Public Guide on Enduring Power of Attorney https://www.kolzchut.org.il/he/ייפוי_כוח_מתמשך
Israel Bar Association – Inheritance and Legal Capacity Committee https://www.israelbar.org.il