Durable Power of Attorney-Enduring Power of Attorney
The Essence of a Durable Power of Attorney (also known as an Enduring Power of Attorney)
A Durable/Enduring Power of Attorney is a legal document that enables a trusted person to handle your affairs if you become mentally incapacitated. It can only be drawn up by a lawyer certified for this matter under the auspices of the Ministry of Justice- Administrator General Office.
The person (called the “Principal”) determines in advance who will be entrusted to take care of his different affairs and how they would like to be taken care of, when they themselves are no longer able to make these decisions.
It is a new and innovative solution, involving a legal procedure based on personal choices and relationships with close and reliable family members and friends. You will choose a Trustee (one or more) who will be delegated to act on your behalf should the time arise when you are no longer capable of handling your own personal, medical or financial affairs.
The Principal decides in advance what would determine, when the time comes, whether the Durable/Enduring Power of Attorney should come into force or not.
A Durable/Enduring Power of Attorney enables advanced legal planning and constitutes a good effective alternative to the problematic method used until now due to no other choice available – the appointment of a Legal Guardian by the Court of Justice with regard to two aspects: body-guardian and financial-guardian (which also required filing yearly detailed accounting forms to the Administrator-General Office). Previously, there was no option to have advance personal guidelines for the future guardian to follow.
Types of Affairs Which May Be Included Within a Durable/Enduring Power of Attorney
On-going Personal and Medical affairs – the person’s welfare, their daily needs, residence (home care or assisted living), on-going health, physical, mental or social affairs, the employment of a caregiver, etc.
Financial affairs – the person’s assets, finances and liabilities. The Principal may determine a general determination where the Trustee is the person delegated to make future decisions on their behalf, and the Trustee acts at their discretion. The Principal may alternatively detail their exact wishes regarding the substance of the decision in all subjects with “Advance Personal Guidelines”.
For example: the Principal could decide, as part of their personal affairs guidelines, that they would prefer to remain in their own home, and only specific circumstances (which can be stated) would require their moving to an assisted living residence. The Principal could also determine their preferences regarding a caregiver. The Principal may decide as part of his financial guidelines that the Trustee could sell or rent the Principal’s home only under specific circumstances or the Principal could determine a guideline according to which the Trustee should invest their funds in a specific manner.
Informed people – the Principal may choose “Informed People” who will receive information or reports from the Trustee regarding the decisions or activities they have taken.
Activating a Durable/Enduring Power of Attorney
The Durable/Enduring Power of Attorney would only be activated if and when you are no longer capable of understanding or making decisions regarding the affairs included in the Power of Attorney: personal, medical or financial affairs (all or some), according to the terms you have determined.
In order to protect you from the Trustee’s abuse of power during the phase when your understanding and abilities are weakened, the law forbids the Trustee from having sole discretion in deciding whether you are of sound mind or not. The law requires a “safety net” involving a third party. These terms could depend on the joint discretion of the Trustee and another person you trust, who may testify based on their familiarity with you. Another option is to require a medical expert’s opinion.
The Benefits of Executing a Durable/Enduring Power of Attorney
You control and take care of your future in advance, clearly expressing your wishes in writing beforehand, so your family would have advance knowledge of how you would like them to act on your behalf, while avoiding family disputes.
You act to simplify and make it easier for your family to handle future affairs and avoid the need for court proceedings, providing you and your family with peace of mind.
The Durable/Enduring Power of Attorney is activated in accordance with what you have determined independently, exempting your family from having to deal with the court when the time arises, and spending unnecessary time and money hiring lawyers and paying legal expenses and court fees.
It allows the Trustee to act independently and effectively, according to their discretion, with regard to the specific binding guidelines you gave in advance.
The Process of Executing a Durable/Enduring Power of Attorney
The process involves two meetings with a lawyer who underwent special training and was granted special certification by the Ministry of Justice- Administrator General Office.
During the first meeting I will get to know you and hear about you and your family. As part of this meeting I will explain the different legal options and implications; your specific needs will be discussed. The meeting should last about two hours. Following this initial meeting there will be discussions over the phone about thoughts that might have arisen after the first meeting and I will begin writing the instructions and guidelines that you would like to incorporate as part of the Durable/Enduring Power of Attorney.
The second meeting will involve the Principal, me and your Trustee/s-to-be. The subject will be presented to the Trustee/s. There will be a shared conversation with them to clarify their role and the Principal’s guidelines, to hear their feedback, and match the Principal’s expectations with the Trustee/s so as to be able to complete writing the guidelines for the Durable/Enduring Power of Attorney. The meeting will last about two hours, at the end of which the Principal and the Trustee/s will sign the Durable/Enduring Power of Attorney.
I will then file the document digitally (online) for registration at the Administrator General Office. The Principal and the Trustee/s will also receive a copy of the document.
Frequently Asked Questions:
Does executing a Durable/Enduring Power of Attorney means I’m taking care of my future?
Definitely. Your Trustee will act according to the guidelines you have given beforehand, and will be authorized to make all decisions on your behalf and apply all decisions regarding the affairs included in the Durable/Enduring power of attorney, such as personal, on-going medical and financial affairs. With the Durable/Enduring Power of Attorney it is much easier for your family members to take care of you in the future.
What is the validity of the Durable/Enduring Power of Attorney?
The Durable/Enduring Power of Attorney is officially validated by the Ministry of Justice- Administrator General Office and legally binds all institutions, including government authorities, banks, etc. It is important to know that a General Power of Attorney (such as appointing a Trustee for your bank account) and a Notarized Power of Attorney are no longer valid if the Principal is no longer of sound mind. This is exactly when the Durable/Enduring Power of Attorney is activated. The word "Durable/Enduring" means that the assigned power of attorney continues to be effective even if you become mentally incompetent.
What is the difference between a Durable/Enduring Power of Attorney and a Will?
A Durable/Enduring Power of Attorney is valid as long as the Principal is alive; when the Principal dies the Will is activated instead.
Is it possible to revoke or amend the Durable/Enduring Power of Attorney in the future?
Yes, it is possible to nullify and amend it any time.
Who may I appoint as a Trustee?
In principle, any person may be appointed. You may appoint your children: one, some or all of them, and you will dictate the rules which will determine the manner of decision making among them. It is also possible to appoint another person you trust who is not a family member. It is important to mention that the Trustee could also be your heir-to-be.
Is a conflict of interest between the Trustee and the heir possible?
There are rules and principles that prevent conflicts of interest. This matter is attended to while drawing up the Durable/Enduring Power of Attorney.
Does the Trustee get paid?
The default is that the Trustee is entitled to receive reimbursement of the reasonable expenses paid in order to operate their powers. The premise of the law regards a family member as a Trustee and therefore salary is irrelevant, as mostly the family member wouldn’t require it. Nevertheless, there is an option to determine that the Trustee will be entitled to get paid for their duty.
May I give guidelines regarding end-of-life medical treatment?
A Durable/Enduring Power of Attorney applies only for “on-going medical affairs” and does not apply for affairs regarding end-of-life medical treatment. As part of my comprehensive service I will help you execute another power of attorney – a “Power of Attorney for Issuing Directives as to Medical Care of a Terminally Ill Patient". Therefore, you will be able to use this opportunity to state your personal guidelines for end-of-life medical treatment.
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