Most couples assume that if something happens to one of them, the other will simply take care of everything. In practice, Israeli law does not give a spouse automatic authority to act on behalf of the other. Without a continuing power of attorney, even a partner of decades may find themselves facing a bank or a hospital with no authority to decide.
What a spouse cannot do without a power of attorney
A property registered only in the name of the spouse who lost capacity, a bank account in that spouse’s sole name, an investment portfolio or a personal pension fund: the other spouse cannot sell, withdraw from or manage any of these just because they are married. Even with a joint account, the bank may restrict certain actions. And in medical decisions, without a suitable appointment, the decision is not necessarily in the spouse’s hands.
The alternative route: appointing a guardian
When there is no continuing power of attorney, the family must apply to the Family Court to appoint a guardian. This takes time, at exactly the moment the family most needs a quick solution. A guardian is subject to supervision, must report and must obtain approval for certain actions, and the choice of who is appointed belongs to the court, not to you.
What a continuing power of attorney solves
With a continuing power of attorney, each spouse decides in advance, while still capable, who will act on their behalf and in which matters: property, personal matters and medical matters. You can include detailed instructions, for example where you would like to live and what should be done with the apartment. The document is deposited with the Administrator General and comes into force only under the conditions you set. For the difference from an ordinary power of attorney, see regular or continuing power of attorney.
Each spouse signs their own document
There is no joint continuing power of attorney for a couple. Each spouse makes a separate document, in a personal meeting with a lawyer authorized for this by the Administrator General. In most cases each spouse appoints the other, but this is not mandatory.
Why it is important to appoint a substitute
Spouses are often of a similar age, and what happens to one may also happen to the other. That is why it is worth appointing a substitute attorney, for example one of the children, who steps in if the spouse cannot act. You can also divide the roles: the spouse for personal and medical matters, and a child or another person for property matters. More on this in how to choose an attorney and when to appoint a substitute.
Continuing power of attorney and a prenup: two documents, two roles
A prenuptial agreement determines who owns the property and how it will be divided. A continuing power of attorney determines who will manage the property when one spouse cannot. A prenup does not give a spouse authority to act, and a continuing power of attorney does not change how property is divided.
The link between them matters especially in a second marriage. When there are children from a previous marriage, you may want your spouse to handle personal matters, while your children manage the assets that the prenup defines as yours alone. That way each document protects what was agreed in the other.
Where to go from here
Adv. Israel Paz is authorized by the Administrator General to draft continuing powers of attorney. At Paz Israel & Co. Law Office we prepare continuing powers of attorney and prenuptial agreements for couples, and we make sure the two fit together. For more information see our continuing power of attorney and prenuptial agreements pages, or contact us to schedule a meeting.
This article provides general information, is correct as of the time of writing, and does not constitute legal advice or a substitute for reviewing your specific circumstances.
To make a continuing power of attorney, you can visit our offices in Tel Aviv, Jerusalem and Modi’in. Full details are on our continuing power of attorney page.