Legal Update - Durable Power Of Attorney


The recent amendment to the Legal Competency and Guardianship Law has revolutionized this sector, primarily because of the new provision allowing for a Durable Power of Attorney.

A Durable Power of Attorney enables the person who grants the authority (referred to as the "Principal") to decide how his medical and other affairs should be handled if he is no longer capable of deciding for himself. The principal chooses his agent and defines the agent's responsibilities and powers, and the circumstances that would trigger the Durable Power of Attorney.

A Durable Power of Attorney gives the Principal the power to control his own destiny, spares the time and trouble involved in complex legal proceedings and limits government involvement (through the office of the Administrator General) and the court system.

Unlike a standard general power of attorney, which expires if the Principal becomes legally incapacitated, the Durable Power of Attorney will usually enter into effect once the Principal becomes legally incompetent, thus limiting any unwanted State intervention and supervision which may be triggered by law when a person becomes legally incompetent.

Only lawyers who have received special training by the Administrator General are authorized to draft Durable Powers of Attorney. Advocates Guy Sagiv and Avi Schoen of our Family Wealth Management Group have such necessary credentials.

Powers Granted to the Agent

The Principal may grant the agent the following powers:

Financial matters. The agent can be authorized to decide on and perform transactions with regard to the Principal's assets, including management of bank accounts, selecting an investment policy, management of real property, etc. Personal affairs. The agent can be authorized to make decisions and carry out actions with regard to the Principal's well being and quality of living, including where the Principal would reside and whether he should be moved to a residential care facility. Medical affairs. The Principal can authorize the agent to decide on his medical affairs, including surgery and urgent medical care. The agent can also be empowerd to decide on psychiatric care or hospitalization in a psychiatric ward or facility (subject to certain restrictions prescribed by law). Note that a Durable Power of Attorney does not cover medical decisions and care in case of a "dying patient", as defined in the Dying Patient Act of 2005. To date, instructions regarding medical care or...

To continue reading