Daniel B. Schwartz

Corona is scary. Remaining unprepared for it is scarier

The current COVID-19 crisis puts all of us into a state of anxiety. Everyone is scared of infection, and of the consequences of getting sick.  What might happen to families and loved ones in the event someone is infected and, Heaven forfend, doesn’t survive, is a very present and important concern.  Of equal importance is the question of what might happen to someone who, as a result of illness or other condition, is unable to manage his or her affairs, is unable to make what might be the most important decisions in their life?

While it’s unpleasant, scary even, to think about these questions, taking the steps necessary to insure we and our loved ones are taken care of is the responsible thing to do.  Israeli law offers several mechanisms that enable people to make their end of life wishes known and provide for the disposition of assets after death; to insure we and our loved ones are taken care of.

What follows is a review of the main mechanisms available to people in Israel:

MEDICAL DECISIONS POWER OF ATTORNEY:  Section 16 of Israel’s Patients’ Rights Law- 1996 empowers a person to nominate a family member as an attorney in fact to make all health care decisions on his or her behalf.  The law is very broadly drafted, allowing the principal to declare the conditions under which the power of attorney will go into effect, its expiration and allows a principal to limit the scenarios in which an attorney in fact is authorized to make medical decisions.  The law empowers people to delineate their wishes for medical care and to appoint the person or persons they believe will best be able to implement those wishes.

The procedure for the preparation and execution of a Medical Decisions Power of Attorney is straightforward. Pursuant to Section 32(15) of the Legal Competence and Guardianship Law- 1962, the official form, promulgated in the statute, is prepared with the assistance of an attorney or a physician or other professional authorized by the law, is then signed by the principal, and two witnesses and the professional before whom it was prepared and executed.

ADVANCE DIRECTIVE: In the event someone doesn’t have family or other people with whom they feel comfortable relying to make medical decisions for them, Section 30 ad loc of the Terminally Ill Patients Law- 2005 provides for the preparation and execution of an Advance Directive.  This document, prepared in consultation with and in the presence of a medical professional, sets forth the treatments a terminally ill patient wishes to receive.  It also sets the parameters for care to be given or withheld.  For example, a principle can dictate that Jewish law as interpreted by a particular rabbi shall control all end of life decisions. Conversely, one can set his or her own course outside of any belief system or other considerations.  The types of treatment to be administered can also be stated.  One can opt that all life saving measures be employed until the very end, or one can state his or her desire that no heroic measures be taken.  The clear policy behind this instrument is to give a patient the legal power to live out their final days in comfort and dignity, in the way the patient understands those terms.

There is one important caveat to remember when preparing and executing this instrument.  It is valid only for a term of five years from the date it is signed.

ONGOING POWER OF ATTORNEY In 2016, there was something of a revolution in Israeli   elder law.  Chapter 2(1) was added to the Legal Competence and Guardianship Law- 1965, which created a new type of power of attorney in Israel, the Ongoing Power of Attorney, or what’s known in American law as the “Durable Power of Attorney.”

The Ongoing Power of Attorney consolidates the granting of authority to an attorney in fact (or attorneys in fact, if the principal so chooses) regarding three main areas of one’s life into one instrument.  With this very flexible and useful document, one can nominate an attorney in fact to make decisions concerning one’s finances, health and personal issues.  It is important to note that the Ongoing Power of Attorney goes into effect, (i.e. the attorney in fact acquires authority to make decisions, and implement them on behalf of the principal,) only upon the determination of a competent professional, or pursuant to criteria determined by the principal, that the principal is no longer able to do so.  The document is designed in such a fashion that a principal can nominate as many attorneys in fact as he or she may wish to make decisions on his or her behalf.  Those attorneys in fact may act separately or in committee; all according to the instructions of the principal.  Additionally, the principal can limit the scope of an attorney in fact’s authority and can also make specific provisions concerning how his or her affairs are to be managed. The net effect of this instrument is that it enables a person to ensure that his or her affairs will be managed by people s/he trusts in accordance with his or her wishes.

Any person above the age of 18, who is in control of his or her mental faculties can execute an Ongoing Power of Attorney.  Like the Medical Decisions Power of Attorney above, it must be signed the presence of an attorney, and the attorneys in fact also must attest their consent to the nomination in writing. Pursuant to the statute, only attorneys who have completed a mandatory course of study and who are certified to sign and file Ongoing Powers of Attorney can represent a client in the preparation of this document.   Upon the document being fully executed and filed with the General Guardian’s Office, institutions, hospitals and all other third parties are bound to its terms.  An attorney in fact, acting in accordance with the terms and provisions of the Ongoing Power of Attorney, has full legal authority to manage the principal’s affairs.

THE WILL: Probably the oldest elder law instrument is the will.  Wills are generally governed by Sections 18-55 of Israel’s Inheritance Law – 1965.  Any adult, of “sound body and mind” can dispose of his or her assets as s/he sees fit via a will.  While generally a will must be in writing, signed by the testator and two witnesses, in certain extreme cases, oral wills, made before witnesses, are also valid.

Section 8(a) of the statute addresses mutual spousal wills.  Mutual spousal wills are identical wills, executed by spouses at the same time.  Neither will can be changed, nor can a new will be substituted for a mutual spousal will, without providing written notice to the other spouse of one’s intention to change his or her will or substitute it with a new will.  This is a particularly useful mechanism to ensure that spouses fully inherit one another, and neither spouse is unpleasantly surprised upon the death of one spouse.

When determining if one should prepare a will, it is important to careful consider Chapter 2 of the Inheritance Law, which addresses intestate succession, i.e. inheritance where there is no will. The first consideration is who the statute considers to be a legal heir, one who stands to inherit by operation of law.  Section 10 of the statute defines legal heirs as one’s spouse, children and their progeny, one’s parents and their progeny and one’s grandparents and their progeny.  The statute goes on to create a hierarchy among the heirs, who inherits before whom.  Additionally, a spouse and children take precedence before any other legal heirs.

The crucial point to understand is that in intestate succession, a spouse inherits only one half of a decedent’s estate, if s/he left children or two thirds if no children stand to inherit.  A Spouse also inherits all personal property of the decedent, including any cars.  If one wants to ensure that a specific child or other family member inherits specific personal property, one needs a will.  Or if one wants to leave an entire estate to a spouse, one needs a will.  Another important point to realize is that all heirs on the same level inherit equally.  There is no control over the inheritance.  So, if someone, for example, wants only certain relatives to inherit, but not others, s/he needs a will.  And finally, if one has no legal heirs as defined by the statute, the state inherits.

Intestate succession is the government’s attempt at fairly disposing of a person’s possessions acquired during a lifetime of labor. If one thinks the law does an adequate job of it, there is no need for a will.  But, if one wishes to make specific bequests, or if one wishes to leave everything to a spouse, the only way to do it is via a will.

The world is experiencing no small amount of insecurity right now.  Insecurity is often born of feeling out of control.  For the most part, none of us can control the COVID-19 pandemic.  Who, Heaven forfend, gets sick, who recovers or worse is out of our hands.  We can restore a small bit of control over our lives though in planning for a time when we might not be able to make decisions.  The powers of attorney described here and the will give us control over our final days.  Equally important, they instruct our loved ones how they can make our final days comfortable and dignified.  We owe it ourselves and to them to avail ourselves of the opportunities the law gives us.

About the Author
Daniel Schwarz, an attorney with offices in Jerusalem, Efrat and Rehovot, made Aliyah from Rockland County, New York in 2016. He's also an avocational chazzan.
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