Will or document expressing the will of a guardian for a period when he will not be able to function as a guardian or after his death

Table of Contents

1. Introduction
   • Explanation of Enduring Power of Attorney (EPA)
   • Importance of Establishing an EPA
2. Understanding Enduring Power of Attorney
   • Definition of EPA
   • Key Differences from Regular Power of Attorney
3. Why You Need an Enduring Power of Attorney
   • Benefits of Having an EPA
   • Situations Where EPA Can Be Crucial
4. Creating an Enduring Power of Attorney
   • Legal Requirements and Formalities
   • Selecting an Agent or Attorney-in-Fact
   • Powers Granted to the Agent
5. Activation of Enduring Power of Attorney
   • Conditions and Triggers for Activation
   • When Does the Agent Start Making Decisions?
6. Limitations and Safeguards
   • Legal Restrictions on the Agent’s Authority
   • How the Law Protects the Principal’s Interests
7. Alternative Legal Arrangements
   • Supported Decision-Making
   • Other Legal Options for Decision Assistance
8. Rights in Wills, Inheritances, and Bequests
   • Understanding Inheritance Laws
   • The Rights and Entitlements of People with Disabilities
9. Conclusion
   • The Value of Enduring Power of Attorney in Planning for the Future

The law allows a person’s guardian to give instructions in the event that he can no longer function as a guardian (e.g. due to illness or death)

The guardian may specify in the will or in the declaration of intent the name of the person he requests to be appointed as guardian in his place, as well as instructions regarding certain actions he would take if he continued to function as guardian

The court may take into account the wishes of the guardian and respect his instructions in the will or the document expressing the will

The right is granted to a guardian who is a relative of the person for whom he serves as a guardian, or to a person who serves as a de facto guardian even if not appointed by the court

Depositing the will or the document expressing the will with the general guardian does not involve payment, but it is necessary to pay a lawyer for the preparation of the documents

The law allows a person’s guardian to give instructions in the event that he can no longer function as a guardian, for example due to illness or death.

• A current guardian who wishes to appoint a replacement guardian in the event that he ceases to be qualified to serve in the position while alive, will do so through an expression of desire document, and he may give the replacement guardian instructions in the document on how to act.
• A current guardian who wishes to appoint a guardian to replace him after his death, will do so in a will, and he may give the replacing guardian instructions in the will on how to act.
• The court will give priority to an appointment based on a document of will or will, if it sees that this is in the best interests of the person for whom the guardian is appointed, and will direct the replacement guardian to act according to the instructions in the document or will, if any.

Target population and prerequisites

• The option is only given to a guardian who is a relative of the person for whom he serves as guardian, or to a person who serves as guardian in fact, even if not appointed by the court.
• The current guardian preparing the document of expression of will and the person he is requesting to be replaced in the role of guardian (“the replacement guardian”) must be over 18 years of age.
• The person whom the guardian asks to replace him in his position (the “substitute guardian”) must agree to serve in the position, read the document and sign it.
• The document can only be drawn up by a lawyer with a smart card, trained by the general guardian.
• The law distinguishes between a guardian of a minor (under the age of 18) and a guardian of an adult (over the age of 18).

Guardian of a minor

• A parent or guardian of a minor, if the guardian is a relative of the minor, may:
• Specify in his will the name of an individual or several people that he requests to be appointed as the guardian of the child after his death.
• Indicate in the document of expression of desire the name of an individual, or several people, that he requests to be appointed as the guardian of the child, if due to a disability he ceases to be able to take care of the child and make decisions about him.
• Give instructions on a matter that is within his authority for the discretion of the court or the guardian who will follow him, so that they will be maintained by them after his death or if he ceases to be able to care for and make decisions about his child or relative, as the case may be.
• The court will give priority to the appointment as guardian of the person whose name was specified in the will or in the document of expression of will, and order the new guardian who will be appointed to act in accordance with the instructions in the will or in the document of expression of will.
• The court may deviate from what is stated in the will or in the document expressing the will if it considers that it is in the best interest of the minor to deviate from them.

Guardian of an adult

• A guardian of an adult (over the age of 18), including a guardian without an official appointment, if the guardian is a relative of the person, may:
• Specify in his will the name of a person, several people, or a corporation (company, association) that he requests to be appointed as guardian after his death.
• Indicate in the document an expression of desire the name of an individual, a number of people or a corporation that he requests to be appointed as guardian, if due to a disability he ceases to be able to take care of the child and make decisions about him.
• To give instructions on a matter that is within his authority for the discretion of the court or the guardian who will follow him, so that they can be maintained by them after his death or if he ceases to be able to care for and make decisions about his relative, as the case may be.
• As with any appointment of a guardian for an adult, before the appointment the court will hear the person who is appointed guardian.
• The court will appoint as a guardian the person whose name was specified in the will or the document of the expression of will, if it saw, after hearing the person and taking into account his wishes, that a guardian should be appointed for him and the appointment of the person specified in the will or the document of the expression of the will is consistent with his best interests.
• The court orders the guardian to act in accordance with the instructions in the will or in the document expressing the will, provided that all the following conditions have been met:
• This is in line with the good of the person for whom a guardian is appointed.
• The person for whom the guardian is appointed did not give advance instructions for the appointment of a guardian.

Who and how to apply

A will or document of expression of will must be drawn up.

Editing and filing of an expression of interest document

Editing the document and depositing it by a lawyer:

• The document can only be drawn up by a lawyer with a smart card, who has been trained by the general guardian authorizing him to draw up an expression of will document.
• After editing the document by the lawyer, he will make an online deposit of the document.
• After the online deposit, a lawyer will send an original copy of the declaration of intent document by registered mail within 14 days from the day of the deposit to the address of the handling district.
• All the documents that the current guardian deems appropriate to attach will be attached to the original document.
• The district must be located according to the residential address of the person for whom a guardian has been appointed and then send the document to the relevant district.

Depositing the document by the current guardian (“the editor of the document”):

• After editing by the lawyer, the guardian who edited the document can deposit the document – by personal delivery and by presenting an identification card (current identity card or passport) at the reception of the relevant district.
• To the signed and original document will be attached all the documents that the current guardian deems appropriate to attach.
• The district must be located according to the residential address of the person for whom a guardian has been appointed and reach the relevant district.
• It is recommended to book an appointment in advance and save precious time.

The steps of the procedure

Handling the request for the deposit of an expression of interest document

• The general guardian’s handling of the request for the deposit of a document of expression of will will begin only after receiving the original copy.
• At the end of processing the request You will send a message to the editor of the document with a copy to the lawyer about the approval or rejection of the request for the deposit of the document of the expression of will.
• From the date of deposit of the document of the expression of desire until the issuance of a guardianship order, the general guardian will send the editor of the document a “reminder”, once every three years, to make sure that the editor of the document does not want to change the document due to a change in circumstances or for some other reason.

Entry into force and expiration or cancellation of an expression of will document

• The “entry into force” will be at the time of the appointment of the guardian by the court, after the conditions in the document of the expression of desire have been met and after the court has approved the appointment requested in the document.
• An expression of will document expires or is canceled according to the circumstances stipulated by law (for example, upon the death of the document editor, according to the will of the document editor or according to the decision of the competent judicial tribunal).
• Notice of cancellation or expiration will be recorded in the registry managed by the general guardian.

pay attention

• You can send a notification about the cancellation or expiration of the document, in one of the following ways:
• By identifying and entering the ‘Government Available’ website and uploading a scanned document of the notification.
• Submitting the notice in person at the offices of the general guardian in the area of residence of the appointee.

Important Information

• A person with a disability who wishes to draw up a document of expression of desire is entitled to the accessibility of the information and the necessary adjustments in the stage of drawing up the document in front of the lawyer (such as: giving explanations in clear and understandable language, reading the document to a person with blindness, etc.).
• There are alternative legal arrangements for guardianship, the purpose of which is to help and support a person who has difficulty managing his own affairs, according to his choice and desire:
• An appointment supports decision-making, which allows a person to make decisions by himself while receiving assistance and accompaniment from another person in the process of making them, in any field he chooses.
• A lasting power of attorney, which allows a person to plan his future and choose who will take care of his affairs and how his life will look if and when his condition deteriorates and changes for the worse.

Rights in wills, inheritances and bequests for people with intellectual developmental disabilities

A person with a developmental intellectual disability can be the heir of a deceased person, according to the rules of the inheritance law

• Upon the death of a person, his assets pass to his heirs. These assets, called an estate, are the inheritance of the deceased.
• In the event that the deceased left a will, the estate will be distributed among his heirs according to the instructions in his will.
• In the event that the deceased did not leave a will, the estate is divided according to the rules of inheritance according to law established in the Law of Inheritance.

pay attention

• If the person who died made a will, an application known as “application for a will execution order” must be submitted.
• If the person who died did not make a will, an application known as an “application for an inheritance order” must be submitted.

A person with a developmental intellectual disability as an heir

• Each of the heirs (by law or by will) who was alive at the time of the testator’s death, is entitled to inherit him. Therefore, even a person with a developmental intellectual disability is entitled to inherit the testator, like any other heir.
• A person with a developmental intellectual disability who has been appointed a guardian and received an inherited estate, his share of the estate will be managed by the guardian.

Entitlement to alimony from the estate

• According to the law, the court has the authority to determine alimony (payment for finances) from the estate in cases where it is proven that a testator has left behind needy family members who are unable to provide for their basic needs.
• The court may award alimony to family members, including a child of the testator with a developmental intellectual disability, whether they are heirs according to law (without a will) or whether they are heirs according to a will.

A person with a developmental intellectual disability as a testator in a will

• According to the inheritance law, a will cannot be written by:
• Whoever is determined by a court to be a person who is legally incompetent.
• The person who wrote the will at a time when he did not understand the meaning of a will.
• That is why each case must be checked on its merits: it must be made sure that the person making the will understands that he is signing a will, that he is giving his property and to whom he is giving it, and also knows what the nature of his property is and what its scope is.

A person with a developmental intellectual disability as a witness to a will

• According to the Law of Inheritance, an invalid cannot be used as a witness to a will.
• Legally incompetent is a person whom the court has declared “legally incompetent”, because due to mental illness or mental impairment he is unable to take care of his own affairs.
• It is important to note that not every person with a developmental intellectual disability is declared by the court to be legally incompetent.

Important Information

• The registrar for inheritance matters, to whom the will reaches, cannot know that it is an heir with a developmental intellectual disability, unless he is informed about it.
• It is desirable that the person who makes a will and includes in it an heir with a developmental intellectual disability, should indicate the heir’s disability in the will and recommend a person to be appointed as his guardian and take care of his affairs.
• At the same time, the final decision on who will be appointed guardian is up to the court.

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