Background
In recent years, there has been growing concern in Israel and worldwide about how to preserve the autonomy of people with disabilities, including their right to make decisions concerning their own lives. One of the most used legal measures that might severely violate individuals’ autonomy is the appointment of a guardian. About half the Israelis who have had a guardian appointed are 65 and older. In April 2017, Amendment 18 to the 1972 Legal Capacity and Guardianship Law entered into force, providing guardianship alternatives, including durable power of attorney (POA). This is a legal document allowing every adult person to determine how and by whom their future affairs will be handled, when unable to do so themselves.
Objective
Examine the implementation of Amendment 18 to the Legal Capacity and Guardianship Law and the contribution of durable POAs to the older adults and to people with cognitive decline.
Methods
- Analysis of administrative data from the Ministry of Justice database on principals, those providing the durable POA and their appointed representatives
- Online survey of 1,086 lawyers who have been trained in issuing durable POAs
- Ten semi-structured interviews with principals and representatives
- Online survey of 68 family members of persons with cognitive decline.
Findings
- The administrative data analysis showed that by April 2021, 52,109 durable POAs were submitted, of which 1,400 (3%) entered into effect. Over the years, a consistent rise in the number of durable POAs was noted. Most (89%) of the principals were 65 and above (Mean age = 76), but only 4% of all persons aged 65 and above signed a durable POA. Three-quarters of the principals lived in communities belonging to socioeconomic clusters 7-9, and two-thirds were from central Israel. The proportion of principals from among the older adult population in the Central and Tel Aviv Districts (5 and 6 percent, respectively) was higher than in the Northern and Southern Districts (2 and 1.7 percent, respectively). Only few of the cases entered into effect within six months being signed.
- The survey of lawyers indicated that 59% had issued up to 10 durable POAs; 45% charged NIS 4,000 and above for drafting a durable POA (younger lawyers charged more). Most (89%) reported being involved in this area out of value-based motives, while 55% reported financial motivation. More than half (52.6%) reported technical difficulties; 29.4% reported difficulties bringing the principals and representatives together; and 23% reported no difficulties at all. Another challenge reported by the lawyers was people’s difficulty to pay for drafting the durable POA (69%). Finally, 27% reported lack of government oversight as a potential challenge.
The lawyers indicated that durable POA was indeed an instrument of advance planning: only 7% of their clients arrived “at the last minute” (immediately prior to cognitive decline). Moreover, 13% reported uncertainty regarding the principal’s legal capacity. Lawyers trained for providing durable POAs expressed interest in obtaining more information during their training, particularly examples for implementation in practice, and more in-depth background on ageing. - The interviewees with both principals and representatives indicated that the main motivation for signing a durable POA were the desire for autonomy, the desire for planning in advance, the need for an immediate solution to a problem; and the desire to avoid guardianship. The barriers to signing the document were both emotional and technical. Professionalism and cooperation with the lawyer were indicated as key elements in the success of the POA process.
- The survey among family members indicated that most were positive regarding the use of advance planning instruments, and that most were aware of them. Nevertheless, only few pursued advance planning for themselves. The main reasons for that were lack of free time due to the need to care for cognitively impaired individuals and the emotional difficulty to discuss this issue with them. A lecture provided by Marva, a non-profit active in this field, helped the participants understand the importance of advance planning.