Populations in Western nations are “growing older” as people are living longer. As the population ages, different legal issues face the aging individual and his/her family.
The following questions provide examples of some of the legal issues and problems pertaining to what has become known as “Golden Age Law”:
- How does one ensure that the ageing will not be financially exploited by unscrupulous care-givers, fraudulent businessmen or even by another family member?
- How do the elderly plan for those who have children with special needs?
- When and under what conditions should an ageing parent give their spouse, their child or close friend power of attorney over their financial affairs?
- How do families ensure that their senior family members enjoy all the social and medical rights afforded to them by the government?
- When is it advisable to appoint a guardian over the aged? Should the appointment be restricted to “guardianship over property” granting authority over the ward’s funds and assets only, or “guardian of the person”, with the power to make personal decisions in matters such as medical treatment or should the guardianship relate to both matters?
- Instead of a guardian, when can the mentally infirm or elderly grant limited powers? Is it preferable to grant a “Continuing Power of Attorney” pursuant to the recent significant amendments to the Israel Guardian and Legal Capacity Law?
- When and under what conditions can one give another the power to end or limit medical treatment to a terminally ill person?
- In bequeathing assets to young adults or grandchildren, how do we ensure that they don’t waste their inheritance as soon as they get it, or it being misused and eaten up by that child’s spouse – particularly in times of divorce?
- How can a trust for future generations be established without “ruling from the grave” and/or incurring unnecessary management costs?
- How should foreign residents draw up a will relating to assets in Israel and how should Israeli residents draw up their will relating to assets outside Israel, with the aim of avoiding unnecessary taxation and executor fees?
- How can one leave his/her estate to his/her spouse knowing that he or she will not re-marry and leave it in turn to somebody else’s children?
- When is it preferable to gift assets rather than to bequeath them?
Cohen Segelov & Co. Advocates and Notaries are able to answer the above questions as they pertain to each client’s specific wishes and needs. Decades of experience in consultation, drafting legal documents and litigation in the area of Golden Age Law enables us to provide our golden age clients and their families with sound and tested advice that will assist them in this critical and complex legal area. We can also assist in the arranging of associated services such as the selection of long-term care providers, home care and nursing home problem solving, retiree health and income benefits, retirement housing, and fiduciary services or representation.
The Recent Legal Revolution in the Law of Guardianship
In 2017, Israel introduced major changes to the Guardianship Law which will only come into force in March 2018. The extent of these changes is beyond the scope of this article but the reader should be aware of a few far-reaching changes that have been introduced:
- Deletion of the term ”ward” – The amendment is intended, inter alia, to re-structure the legal concept of a “ward”, that is, the concept of the person over which a guardian has been appointed. The word “ward”, which over the years had developed to connate a person with no or little rights, has now been depleted form the law books. The whole thrust of the new law is to ensure the dignity and rights of those who are no longer capable of looking after their own affairs.
- Continuing Power of Attorney- Often a guardian is appointed that is not the one that the incapacitated would have wanted to be appointed, sometimes even a complete stranger who knows nothing about the person who he/she is meant to protect and make important decisions for. In order to avoid such situations, and in particular to ensure that a person (defined as “the Appointer”) has the option to decide IN ADVANCE who his/her guardian (now known as “the Appointed”) should be when he/she becomes legally incapacitated in the future, the law now allows for the elderly, in fact for all of us, to create a special power of attorney, known as a “Continuing Power of Attorney”.
By means of a Continuing Power of Attorney, the Appointer, who still has legal capacity, can decide in advance, not only who will be the Appointed, but also what will be the extent of the powers of the Appointed, whether the appointment will be over the physical or financial affairs of the Appointer or both. In addition, the Appointer can also provide “advanced directives” whereby the Appointer can determine in advance what decisions the Appointed must make, whether medical or financial.
Only lawyers who have undergone a professional course specifically designed for to qualify them in relation to this power of attorney are allowed to assist the client in drawing it up. Once drawn up and signed, an original of the Continuing Power of Attorney is deposited with the Custodian General (or with the lawyer who witnessed the signing of the Continuing Power of Attorney). A Continuing Power of Attorney does not need the confirmation of the courts and unless changed by the Appointer, is perpetually valid
It should be noted however, that the law does not allow for the Appointed to have unlimited powers: for example, the Appointed cannot bequeath the estate of the Appointed, and certain gifs and transfer of property are subject to the courts review.
- The Support Decision Maker
Mental incapacity is not always complete, nor does it arise instantly in most cases. Many persons have the capacity and understanding to make competent decisions about their affairs, if only aided by a suitable third party. Likewise, mental illness or dementia is often a process which can take years before it negates the person’s ability to make sensible decisions, with or without the assistance of a third party.
The amendment has created the legal position of a “Support Decision Maker”, that is, the granting of legal status to a third party to assist the Appointer in making a wide range of decisions in the Appointer’s day to day life, particularly to assist the Appointer in understanding the information needed for making these decisions. It should be noted that the Support Decision Maker cannot make decisions instead of the Appointer but only to assist in the decision-making process. In particular, the Support Decision Maker has the power to obtain information for, and to execute the decisions of, the Appointer.
Cohen Segelov & Co. Advocates and Notaries specialize in legal advice and representation in regard to guardianship issues, medical powers of attorney, perpetual powers of attorney, associated services (nursing homes and caregivers, financial and banking advice, taxation issues, inter-vivos gifts), foreign guardianships and immigration to Israel issues related to the Golden Age such as pension rights. With regard to the new changes to the Guardianship law and Continuing Powers of Attorney, Cohen, Segelov & Co, are able to assist you in understanding and applying these far-reaching changes in the Law as they may pertain to your particular needs.
Many of the English-speaking clients of Cohen Segelov & Co. Advocates and Notaries have chosen our services as we are able to provide excellent and quality service in the English language.
Please don’t hesitate to contact us for further information.
Cohen Segelov & Co. Advocates and Notaries
Telephone: 972 3 613 4244
Fax: 972 3 6134245
Email: info@cslaw.co.il
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This article contains general information about legal matters. The information is not advice, and should not be treated as such. You must not rely on the information contained in this article as an alternative to legal advice from us. If you have any specific questions about any legal matter you should consult us directly. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information contained therein.
An article written by Gidon Cohen and Lisa Segelov about an Enduring Power of Attorney published in the Jerusalem Post on 7/2/2018 – http://www.jpost.com/Jpost-Tech/Business-and-Innovation/Your-taxes-Enduring-power-of-attorney-540895
