Guardianship and a Durable Power of Attorney: Arranging the Future in Advance and Responsibly

One of the important decisions a person can make about their legal future is what their life will look like at the moment they can no longer manage their own affairs, whether for medical, cognitive or emotional reasons. The Halevi • Levi law office, which specializes in family law and guardianship, accompanies clients in preparing a durable power of attorney and in applications for the appointment of a guardian, with responsibility, sensitivity and sound legal planning.

What is a durable power of attorney?

A durable power of attorney is an innovative legal document that allows any competent person to appoint an attorney-in-fact on their behalf (a relative, a friend, a lawyer and so on), who will be able to make decisions in their name once they lose their competence, without the need for a court appointment of a guardian.

The power of attorney may include:

Personal matters (welfare, housing, medical care)

Property matters (management of accounts, assets, payments)

Medical matters, so long as there are no other advance directives

A durable power of attorney may be drawn up only with a lawyer certified by the Ministry of Justice, and it depends on the principal understanding its meaning and its consequences.

And what is guardianship?

When a person is no longer competent and there is no durable power of attorney in force, their family members will have to apply to the court for the appointment of a guardian who will act in their name and in their place.

The guardian may be:

A family member

A close friend

A professional (lawyer, social worker) The appointment is made with the approval of the court and under close supervision by the Administrator General.

Advantages of a durable power of attorney over guardianship

With a durable power of attorney, the attorney-in-fact is chosen by the person themselves (the principal), whereas a guardian is appointed by a decision of the court.

Entry into force of the appointment: with a durable power of attorney this happens when the principal loses competence. Guardianship, by contrast, takes effect only after a judicial decision.

Supervision under a durable power of attorney is reduced (periodic reporting only), whereas guardianship is carried out under close supervision by the state.

Time and complexity: the durable power of attorney process is quicker and simpler, while the appointment of a guardian is a more complex proceeding that sometimes requires witnesses, evidence and the signing of affidavits.

Frequently asked questions: guardianship and a durable power of attorney

Can any lawyer draw up a durable power of attorney?

No. Only a certified lawyer who has completed training on behalf of the Administrator General is permitted to draw up the application and to do so.

Can a durable power of attorney be revoked?

Yes. As long as the person is competent, they may revoke or change the power of attorney.

Is a doctor's signature required in order to draw up a power of attorney?

It is not required, but it is sometimes advisable to attach a medical opinion, mainly at an older age or where there is a medical history.

Is it possible to appoint two attorneys-in-fact?

Yes. Several attorneys-in-fact may be appointed, each for a different area or acting together, and mechanisms for deciding in the event of a dispute may also be set.

What happens if there is no power of attorney and the person has lost competence?

An application must be filed with the court for the appointment of a guardian, a proceeding that requires medical documents, affidavits and sometimes court hearings as well.

Halevi • Levi law office: looking to the future with legal responsibility

The office is certified to draw up a durable power of attorney, and it also represents clients in guardianship appointment proceedings. We offer personal support, suited to the family's needs, and take care to combine legal protection with the person's dignity and wishes.