Legal tools in case of loss of capacity and death

by | Nov 10, 2023 | Caregiving, Laws & Regulations

Optimism allows us to manage our daily routine without worries, such as what will happen if we suddenly reach a situation of loss of ability and cannot manage our affairs? What will happen in the event that God forbid we get hurt and die? At the same time, at a certain age you have to think about the future, and about events that optimism “saves” us from having to deal with. A situation where, God forbid, we will reach a loss of capacity – due to a medical condition, including a condition of death.

In this article I will review the legal tools that make it possible to control, or give control to a person you believe in and trust, usually a family member – to take care of your financial, personal and health matters. These tools make it possible to give that person instructions, and also provide control and review mechanisms, additional family members or the state through its attorney’s office. The tools I mean have names that don’t really explain what they give, who they are suitable for and in what situations.

What is the basis for the legal tools in case of loss of capacity and death, why should you rely on them?

Well, at the base of these tools there are two “ideas”[1] – money and the state. These ideas reside in our collective memory as a nation or residents – we all believe that the state and money will continue to exist even after our death. That is, our money will continue to exist and may be taken by those who we do not want to receive our money, and the state whose job it is to provide us with protection should prevent this.

The state does this in a certain sense, through the law – but the law cannot provide an answer for every person and every family. Therefore, the law provides a person with tools that allow him to determine and give instructions according to his preference and desire. If the person uses these tools – the state (which will continue to exist after him) will take care to protect his will.

How will she do it? In the Ministry of Justice, there is a general guardian division where attorneys (lawyers) work, civil servants, which is their job and strict ethics rules apply to them. From my personal acquaintance with some of them – they do their work with a great sense of mission.

Of course, their intervention is not always necessary – but the possibility of intervention always exists, and it is good that it is so. The need for one of the tools that I will write about arises from controlling one of the events according to the flow chart (starting from left to right):

Now that we understand the basis of the legal tools for loss of capacity and death – let’s begin.

First tool for loss of competence – lasting power of attorney –

This is a relatively new legal tool that allows a competent person to appoint someone they trust and believe in, to take care of their affairs in the event of loss of capacity. The first person is called Hammana, and the second person is called “Myopa HaKah”. The power of attorney must agree to act as a power of attorney, and he actually takes on a great responsibility to act honestly and faithfully in all his actions as a power of attorney.

Lasting power of attorney is given in 3 areas – financial matters, personal matters and health matters.

After the Lasting Power of Attorney is signed, it is submitted to the offices of the General Guardian and effectively sits there in a “dormant” state. That is to say, the person entrusted with the power cannot make any use of it. What “triggers” the lasting power of attorney is an event, which is written in the lasting power of attorney. This event is the situation in which it will be decided that the appointee can no longer handle his affairs. The default is that a medical opinion states that a person can no longer take care of their affairs, but this is a default that is not suitable for everyone.

for example-

Many times the medical staff hesitates to make a decision – sometimes because the diagnosis is not clear-cut, sometimes due to a different interpretation of the situation resulting from a lack of familiarity with the prescriber, and sometimes due to over-defensiveness and fear of a lawsuit. In my humble opinion, the appointee’s acquaintances and those he trusts are the appropriate people to determine whether the appointee is “qualified” to handle his affairs or not. Therefore I suggest that the “event” that will “trigger” the “dormant” continuing power of attorney will be the impression of the people who know it. of the authorized person, and of one other family member or close acquaintance. These will give an affidavit to a lawyer (a short and cheap process) that the appointee is no longer “competent” to handle his affairs and the affidavits will be submitted to the general guardian who “executes” the power of attorney. Enduring power of attorney?

Enduring power of attorney – to which entities can it be presented?

After “activating” the power of attorney, it can be presented to entities such as banks, commercial entities, medical staff, etc. – and act “in the shoes of the appointer”. On the face of it, it can be said that this gives too much power to the power of attorney or to the additional person who could in an extreme case” to “execute” the continuing power of attorney while the appointee is fully qualified, and perhaps without his knowledge. This risk is mitigated due to several things:

(1) Signing an affidavit is done after a person is warned to tell the truth, otherwise he is subject to the penalties provided by law. This refers to the punishment for giving false testimony – up to 7 years in prison.

(2) The power of attorney must sign a confidentiality waiver as part of which, during the examination of the power of attorney, the attorneys of the general guardian receive information about the power of attorney, with an emphasis on whether he has any criminal convictions. This is to make sure that there is no risk in the actual appointment.

(3) A continuing power of attorney does not give full power as will be detailed in the next paragraph.

What cannot be done using the tool for loss of capacity – lasting power of attorney?

It is not possible to sell the appointee’s apartment through a continuous power of attorney (it is necessary to contact the court). It is not possible to give gifts or donations, unless the appointor gives instructions within the continuing power of attorney that allow this, and that too up to a limited amount. In medical matters – it is not possible to make decisions in matters of not prolonging life, matters that can be settled using the penultimate tool in the article.

Of course, the authorized person is responsible and must act faithfully in his position – he must not do actions in conflict of interest (transfer money to himself, transfer to acquaintances, enter into transactions whose purpose is to benefit himself or his acquaintances, etc.). In addition, it is possible to monitor the power of attorney through “informed persons” – people, family members for example, who as soon as the power of attorney is activated will have an obligation to inform them. In addition, it can be determined that family members, for example, will be entitled to demand and receive an account of the activity. Another supervisory factor that can be determined (authority) is the state through a lawyer

A second tool for the loss of competence – preliminary instructions document –

As can be understood so far – a lasting power of attorney is a very “powerful” tool, which gives a great deal of control to the power of attorney.

Therefore, another tool was created that offers a less “strong” alternative to the continuous beautification of power. This tool is called an advance directives document. This document makes it possible to give the same instructions and powers that a lasting power of attorney gives, with one difference – the “activation” of the document is done through a court decision that states that the person is in a state of loss of capacity and needs a guardian.

In such a case, the court considers the instructions written in the instructions document – the identity of the guardian and the instructions given to him. This tool is especially suitable for unruly people, who on the one hand want control over what will happen once they are incapacitated, and on the other hand are not willing to give up control over their affairs out of a real fear that self-interested parties will try to take advantage of them. The document of the preliminary instructions is examined by the court, which is obliged to take into account the aforementioned, but is also authorized to deviate from the words if necessary, according to the circumstances.

A third tool for loss of capacity – a medical power of attorney according to the Patient’s Rights Law and the Dying Patient Law, or a document of instructions –

This is a power of attorney given in order for the power of attorney to make decisions on behalf of the appointee in medical matters when the appointee reaches a state of loss of capacity. Through an additional, special power of attorney, it is possible to establish that the same person will be able to make decisions also in matters related to not prolonging life.

Here too, instead of a power of attorney, there is an alternative in the form of a document of instructions, in which the person expresses his desire for which treatments will or will not be performed on him – and the medical team will act according to these instructions.

A legal tool in case of death – I will –

Contrary to all the tools presented before – a will is a tool that makes it possible to settle matters, mainly property, after death. Those who do not make a will are in fact allowed to have their affairs run according to the law of inheritance, which sets a default for a recognized division of property in which the property is divided half to the remaining spouse, and the half year is divided equally between the children. This arrangement suits some, and is very unsuitable for others.

But even if the “default” of the law sounds appropriate in terms of the relationship (for example, parents who are in a normal relationship with their three children). There are cases where it might be worth deviating from that “default”. For example – if one of the three children owes a lot of money, and enforcement or bankruptcy proceedings are underway against him.

What happens in case of death?

In the event of death, that child becomes the heir, and the inheritance money becomes an asset that creditors can discover, seize and take. If this is known in advance – the parent can draw up a will and within it establish various mechanisms in order to prevent such a situation. It is important to emphasize that this is the parent’s money, and he has the full right to do what he wants with it. Therefore, the same parent may determine that the child will not inherit anything, and that 1/3 of the excess will be divided among the others so that they will take care of the brother who will not inherit anything. This is of course a mechanism based on trust between the parents and the other two children – from a family point of view this can be a very strong mechanism, but from a legal point of view it is a weak mechanism because each of the children can decide to keep the part for themselves, and not give anything to the sibling who did not inherit anything. What will happen in a case similar to the one I described – only that this time the child with the debts is also the only child?

Mechanisms that can be activated within the framework of a will-

There are several mechanisms that can be activated within a will – one of them is called a private endowment, a mechanism similar to a trust. The idea is to create a body called the endowment, which can be defined as a type of private association that has regulations that state that the endowment should take care of the child. This endowment will be managed by people whom the testator trusts and those people by the state inspector.

Other cases in which it is important to draw up a will is if the children are incompetent and cannot manage their affairs.

If by default they inherit and do not have a suitable guardian, the state steps into their shoes and manages the money they inherit. about the costs and difficulties this may create.

In conclusion-

Despite the mental difficulty of thinking about complex situations – it is important to prepare in advance for a situation of loss of service or death, God forbid, in order to take care of ourselves and those who depend on us.

For consultation you can contact the contact details or mobile – 0546309657.