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David Page
US Lawyer and Israel Attorney

Durable Power of Attorney (POA) – Top 5 Smart Tips

(Image commercially licensed by author)
(Image commercially licensed by author)

The durable power of attorney is a very powerful and potentially immensely helpful document. In the United States, this has been an important for anyone wanting to arrange their financial, healthcare, or personal affairs as part of their wills, trusts, and estates planning.

That means that if you’re worried about not being fully able or competent to make an important life decision, you can provide the people and the ways those decisions can be made if you can’t make the decision. This has long been a straight-forward go-to choice of Americans, but only recently was it easy to do in Israel. Israel, for the past few years only, has allowed properly trained and certified lawyers to draft durable power of attorney documents or POAs. Before that, a resident of Israel had to go the Family Court to give or receive a durable power of attorney. This was a costly, difficult, and potentially fraught court proceeding (depending on who opposed the appointment). Today, just as in the US, this can be done in the privacy of your own home with a lawyer. It is still not as easy as the online or discounted services in the US such as RocketLawyer, InsideOutsideCounsel or LegalZoom, but it is significantly easier than before.

These are the TOP FIVE SMART TIPS that a wise planner will always take into account when executing a durable POA as follows:

TIP NO. 1

Choose the Person Receiving Power of Attorney Wisely. Although the person receiving your power of attorney — called your attorney in fact — has a very high duty of defending your interests as expressed in your POA, bitter experience shows that it’s easier to choose this person wisely rather than run after the person to collect from them or call them to account after the fact. So the takeaway is: Make sure the person you choose is either a highly trusted family member or friend or a professional person with a strong ethic of honesty and services.

TIP NO. 2

Be Careful About How You Can Be Declared Incompetent. If you don’t trust the individual who is receiving the power of attorney 100%, it would be a good idea to have some objective person — like your family physician or alternatively a colleague from their clinic — have to declare you incompetent in order for the person receiving your power of attorney to act on your behalf. Otherwise, a bad-faith actor can act on your behalf even when you wouldn’t want them to, and again, it’s better to prevent issues rather than fight a rearguard action.

TIP NO. 3

Appoint Someone Entitled to Receive Reports and Information. One way to safeguard the POA arrangement is to appoint someone who is entitled to receiving reports and information about the exercise of the power of attorney. In this way, there will be someone who has oversight over what is being done. Just make sure to inform that person with the oversight powers, and don’t forget to send them a copy of the POA.

TIP NO. 4

Consider Carefully Where to Give Discretion and Where to Be Specific. Because some issues are non-negotiable for you, and some will be highly dependent on the facts available at the time, it would be a good idea to stay flexible when it comes to unforeseeable situations — allowing some discretion to your attorney in fact — and very specific when it comes to those issues that under no circumstances should be compromised. You can have your lawyer draft up the power of attorney document accordingly.

TIP NO. 5

Finally, don’t forget that circumstances can change, and so can relationships, and as long as you are able to do so, you can and should change your power of attorney document to reflect changes in your circumstances. Like a will, you can and should feel free to change your POA at will. In this regard, remember that like your will, you can only change a power of attorney document when you are a competent to do so and, of course, still living. So it’s good to try to plan in advance.

With those issues in mind, the durable power of attorney should be helpful rather than harmful to your interests and can be a valuable tool in your financial, healthcare, and personal planning as a part of a wills, trusts, and estates plan.

About the Author
David Page is a US and Israeli attorney practicing law in Jerusalem. David is a graduate of Harvard University and the University of Chicago Law School, after which he went to study European law at the University of Paris and to clerk on the US Court of Appeals. David also has learned at the Mir Yeshiva, and has taught at the Faculty of Law of the Hebrew University of Jerusalem and published in the field. He served as regulatory counsel in an American Israeli high-tech company for more than half a decade and heads his own law firm and is the founder and CEO of the business law tech platform InsideOutsideCounsel, www.insideoutsidecounsel.com. You can write David at david@davidpagelaw.com or visit him at www.davidpagelaw.com.
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