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13 Ha`reches Blvd., Platinum Quartet Buildings , building A , 4th floor, Modiin
Tel: 03-5688618 Fax: 03-5688619
28 Ha`Arba`a st., Ha`Arba`a Towers – North Tower, Tel-Aviv 6473925
Tel: 076-5384260 Fax: 076-5104036
Continuing Power of Attorney
A standard power of attorney is not effective where the principal is incapacitated. Up until two years ago, before the amendment to the Legal Capacity and Guardianship Law, the only solution for an incapacitated person was to apply for a court-appointed guardian.
The appointment of a guardian bears several drawbacks, and the amendment to the Legal Capacity and Guardianship Law, which allows for the appointment of an attorney-in-fact under a Continuing power of attorney, overcomes such drawbacks.
Once a court appoints a guardian for a person, the person to whom the guardian was appointed is deemed a ward and stripped of any capacity to take action or even express his/her wishes. Wards have no say on the identity of the court-appointed guardian, much less the ability to give the guardian instructions. This is why, on more than one occasion, we have witnessed the appointment of a guardian who would not necessarily be the ward’s first choice.
Another troubling factor is the inherent conflict of interest between the guardian and the ward. Often times, the ward has funds and assets which would normally (were the person not a ward) be used to fund the ward’s nursing and care. However, the guardian is not always aware or willing to use such property to fund the nursing and care that would be in line with the ward’s actual financial ability.
A Continuing power of attorney is a novel instrument that allows a person, while having the capacity to do so, to designate a future attorney-in-fact, give such attorney advance instructions on the making of future decisions, and even designate the person/s to whom the attorney-in-fact shall report.
A Continuing power of attorney can provide for numerous issues: Property matters (handling bank accounts, investments, real estate, payments to the authorities, etc.); personal matters (shall care be provided at home or at an institution? Which institution shall it be? How shall care and treatments be funded? Representation on personal/legal matters, etc.); and medical matters (which treatments are to be avoided? How are medical decisions to be made? Etc.).
Another important point is that the entry of the Continuing power of attorney into effect does not fully negate the principal’s ability to make decisions and be heard.
The Legal Capacity and Guardianship Law has also created another instrument – A statement of wishes. In such document, the parent or guardian of an underage child or an adult in need of a guardian are able to designate a person they deem to be suitable for service as the guardian in the event of their incapacitation, and give such designated guardian advance instructions. Such document is intended to arrange for the appointment of the chosen guardian in the event that the natural or appointed guardian is alive but lacks capacity. Instructions for the time following the passing of such guardian may be specified in a will and testament.
Adv. Iris Yardeni is qualified to draft Continuing powers of attorney, advance instructions and statements of wishes.
The importance of arranging for the division and distribution of property after one’s passing cannot be overstated. The provisions for such division and distribution must be tailored to one’s personal needs and expectations, rather than be incorporated into an oversimplified ready-made template.
Some people would be happy with a will that divides their estate between the children in equal shares. Others would like to ensure that the estate, in whole or in part, is not distributed at once, but rather provides their beneficiaries with a fixed income over time, and others still would like their spouse to receive all of their estate while ensuring that their children are taken care of upon the spouse’s passing (by a mutual will and testament). There are, of course, other factors that affect the guiding considerations in the drafting of a will, such as the age of the testator and more.
A will should be drafted after analyzing the family relations and the financial situation and taking into account numerous factors:
- Gifts made during one’s lifetime to some of the children, on an unequal basis. For example, where an apartment is purchased and registered in the name of one of the children, thereby making such apartment the property of such child, rather than part of the estate, there is room to consider whether to deduct the value of the apartment from such child’s future share in the estate.
- Children from a previous marriage: Will they be beneficiaries on an equal footing with the children in common from the present marriage or otherwise?
- What restrictions, if any, will be imposed on a spouse who receives all of the estate as the beneficiary of a mutual will? Will such spouse be able to live in the marital home with a new spouse? If the answer is positive, will restrictions be imposed to preempt future claims of community property? Will such spouse be able to give gifts in unlimited amounts? Will such spouse be able to give different testamentary instructions?
It is important that the will specify the existing property (various accounts, real estate, shareholdings and partnerships, loans given by the testator, etc.) in order to help the beneficiaries identify and find the property when the time comes and facilitate future contracts between the beneficiaries.
Drafting a will and testament is a process meant to clarify the needs of the testator, with a profound knowledge and understanding of the legal and financial tools available for fulfilling such testator’s wishes.
I also place great importance on parents’ wish to ensure particular forms of distribution to the beneficiaries, especially where there is a special concern in anticipation of a future difficulty. It is for this purpose that there are estate administration or trust mechanisms that allow for distribution of the estate over time, according to the directions of the testator.
My extensive experience in drafting wills also comes into play where moral decisions need to be made, e.g., with regards to the appropriate distribution between the beneficiaries and other issues.
Where a will is drafted appropriately, it allows for an accurate reflection of the testator’s wishes, and in due time – the fulfillment of such wishes. It is not a seldom occurrence for courts to deal with the interpretation of wills that were not drafted with sufficient clarity, at times leading to an outcome that reflects the court’s instructions, rather than the testator’s wishes.
About the firm
The firm was established in 1998 by Adv. Iris Yardeni, and has since represented leading and well-known companies of various commercial sectors, such as tourism, aviation, industry, construction and services. The firm’s clients are diverse and consist of both businesses and individuals.
Years of experience
The firm provides its clients with close legal assistance and advice on an ongoing and daily basis. It also represents clients in a broad range of commercial transactions with businesses or governmental agencies as well as in court. In doing so, owing to many years of experience, the firm applies principles of management, a broad perspective and a business-oriented approach.
From its very first day, the firm has been a welcoming home to its clients, with interpersonal relations being a guiding principal in all interactions of the firm’s employees with clients, also ensuring a high standard of service and availability.
Diverse Areas of Practice
Strategic legal advice for businesses
Labor laws (representing employers and employees alike)
Real estate – Sale and purchase of residential properties, lots and commercial properties; lease of residential and commercial properties.
Inheritance and wills – Drafting wills, handling matters of inheritance, agreements between heirs/beneficiaries and estate administration
draft Continuing powers of attorney, advance instructions and statements of wishes.