Enduring Power of Attorney for Israelis in the United States
Enduring Power of Attorney for Israelis in the United States: What You Need to Know for the Document to Be Valid in Israel
Many Israelis living in the United States continue to hold assets, bank accounts, legal rights, and personal interests in Israel. In such situations, an Enduring Power of Attorney is one of the most important legal planning tools available, because it allows a person to decide in advance who will handle their affairs, and how, if in the future they are no longer able to make or communicate decisions on their own.
However, contrary to what many people assume, an Enduring Power of Attorney is not the same as a regular power of attorney or a notarized power of attorney. It is a document with significant legal consequences and is subject to strict requirements under Israeli law. For Israelis living in the U.S., failure to comply with these requirements may result in the document being invalid in Israel when it is actually needed.
What is an Enduring Power of Attorney?
Estate planning / Family law / Israel
ilana.kwartin@gmail.com / +972-507-393376
An Enduring Power of Attorney is a legal mechanism designed to serve as an alternative to guardianship. Through it, a competent adult may appoint one or more attorneys-in-fact in advance to act on their behalf in personal, medical, and/or financial matters if and when the person reaches a stage at which they are no longer able to understand matters or make decisions in those areas.
The main advantage of an Enduring Power of Attorney is that it preserves the principal’s autonomy. Instead of a court appointing a guardian after loss of capacity, the principal decides in advance who will act on their behalf, in which areas, and under what instructions.
The first and most important requirement: only an Israeli attorney specially certified for this purpose
Under the Israeli Legal Capacity and Guardianship Law, an Enduring Power of Attorney must be prepared and signed only before an Israeli attorney who has undergone special training and has been specifically certified for this purpose. This is not merely a technical requirement. The law assigns the attorney a substantive role: to ensure that the principal understands the meaning of the document, its consequences, and the available alternatives, and to verify that the signature is given freely, without pressure and without undue influence.
This means that not every attorney may prepare an Enduring Power of Attorney. Only an Israeli attorney with the specific certification required for this field, and who has no personal interest in the document, may do so.
The rationale behind this requirement is clear: an Enduring Power of Attorney can have a dramatic impact on a person’s life, body, property, and dignity, and therefore Israeli law requires close professional supervision at the time it is executed.
A common mistake: an Israeli consul or an American notary is not authorized to approve an Enduring Power of Attorney
Many Israelis in the United States assume that if various legal documents can be authenticated before an Israeli consul or a local notary, the same can be done for an Enduring Power of Attorney. This is a fundamental mistake.
While a regular power of attorney, affidavits, and other documents may in some cases be authenticated before an Israeli consul abroad or a foreign notary, sometimes together with an apostille, an Enduring Power of Attorney is a different kind of document. An Israeli consul is not authorized to act as the person approving an Enduring Power of Attorney, and an American notary is not authorized to do so either. The reason is straightforward: they are not Israeli attorneys who have undergone the special training required by Israeli law to assess the principal’s capacity and understanding of the document.
Therefore, even if the signature on the document is authenticated before a notary in the United States or before an Israeli consul, that does not satisfy the requirements of Israeli law for an Enduring Power of Attorney.
Can an Enduring Power of Attorney be signed while staying in the United States?
Yes, but only in the correct manner.
Israeli law does not impose a territorial restriction that prevents a qualified Israeli attorney from preparing and authenticating an Enduring Power of Attorney while the principal is outside Israel, including in the United States. In other words, an Israeli residing or staying in the U.S. may sign a valid Enduring Power of Attorney for Israel, as long as the signature is made before an Israeli attorney holding the required certification.
As a practical matter, this may be done, for example, where:
a qualified Israeli attorney is present in the United States;
a qualified Israeli attorney travels specifically for the signing; or
the process is carried out in an organized manner with a qualified Israeli attorney, subject to the applicable legal requirements and practice.
Accordingly, the fact that a person resides or stays in the United States does not necessarily prevent them from executing a valid Enduring Power of Attorney for use in Israel, but it does require proper planning and careful implementation.
An especially important rule for Israelis abroad: domicile and choice of law
One of the more complex issues in this area is the rule of private international law. Under section 77(b) of the Israeli Legal Capacity and Guardianship Law, the validity and scope of an Enduring Power of Attorney are governed by the law of the principal’s domicile on the date the document is executed.
The term "domicile" has substantial legal meaning and is not necessarily identical to a temporary address or a person’s physical presence at a given moment. It generally relates to the question of where a person’s center of life is located.
Accordingly, for Israelis in the United States, two principal scenarios may arise:
1. The center of life is still in Israel
If the person is an Israeli citizen staying in the United States, but their center of life is still in Israel, for example due to family, economic, property, or other ties, then as a rule an Enduring Power of Attorney prepared under Israeli law will have a stronger legal basis for validity in Israel.
2. The center of life has moved to the United States
If the person has permanently moved their center of life to the United States, the issue may be more complex. In that case, it may be necessary to examine which law applies based on the person’s domicile, and sometimes even to obtain an expert opinion regarding the foreign law of the relevant U.S. state. This is because the United States is not a single uniform legal system for all purposes, and the law of the specific state involved may be significant.
Therefore, for Israelis living in the United States on a permanent basis, it is not advisable to assume automatically that every Israeli-style Enduring Power of Attorney will be immune from challenge. In such cases in particular, it is important to obtain individualized advice from an Israeli attorney who is also familiar with the relevant aspects of private international law.
Deposit with the Israeli Public Guardian: an essential condition for validity
Even after the document has been properly signed, there is another step that is absolutely critical: depositing the Enduring Power of Attorney with the Israeli Public Guardian.
Unlike a regular power of attorney, an Enduring Power of Attorney is not complete upon signature alone. Under the law, deposit with the Public Guardian is a prior and necessary condition for the document to be activated validly in the future. In practice, the deposit is usually made online by the attorney who prepared the document.
Without proper deposit, the document may have no legal effect in Israel precisely when it is needed.
From a practical standpoint, it is therefore important to distinguish among three separate stages, each of which is essential:
preparation of the document in accordance with the legal requirements;
signing before a qualified Israeli attorney; and
deposit with the Israeli Public Guardian.
Only proper completion of all three stages will ensure that the process is legally sound.
Why is this especially important for Israelis in the United States?
Israelis in the United States often hold:
apartments and other real estate in Israel;
Israeli bank accounts and investments;
pension, social, and other financial rights;
companies, shares, or business interests;
personal or medical matters connected to family members in Israel.
In the absence of a valid Enduring Power of Attorney, if that person loses capacity, family members may need to initiate legal proceedings in Israel, including an application to the court for appointment of a guardian. This can be a complex, costly, sensitive, and slower process, especially when the family members themselves are abroad.
A properly prepared Enduring Power of Attorney can spare considerable difficulty, allow continuity in the management of the person’s affairs, and reduce friction and uncertainty during a crisis.
Practical takeaways for Israelis residing in the United States
Anyone considering preparing an Enduring Power of Attorney while in the United States should keep the following basic rules in mind:
Do not sign an Enduring Power of Attorney before an American notary instead of a qualified Israeli attorney.
Do not rely on consular authentication as a substitute for the legal requirements applicable to an Enduring Power of Attorney.
Work specifically with an Israeli attorney who has completed the special training required for Enduring Powers of Attorney.
Review in advance the question of domicile and center of life, especially if the move to the United States is permanent or long-term.
Make sure the document is deposited with the Israeli Public Guardian after signature.
Conclusion
An Enduring Power of Attorney is a vital legal tool for Israelis in the United States who wish to protect themselves, their families, and their affairs in Israel. However, for the document to be valid and enforceable when needed, the requirements of Israeli law must be followed carefully.
The most important points are these: an Enduring Power of Attorney must be prepared and signed before an Israeli attorney with the required special certification, and not before a consul or foreign notary; the principal’s domicile on the date of execution must be considered; and the document must be deposited with the Israeli Public Guardian in Israel.
Israelis living or staying in the United States should not rely on partial solutions or common misconceptions, but rather seek proper legal guidance to ensure that the document complies with the law and will truly protect them when needed.
Note: This article is for general informational purposes only and does not constitute legal advice. In any specific case, and especially where the person’s center of life has moved to the United States or where there are connections to both countries, individualized legal advice should be obtained from an Israeli attorney qualified to prepare Enduring Powers of Attorney and familiar with the relevant international aspects.
Dr. Ilana Kwartin, Adv.
Estate planning / Family law / Israel
ilana.kwartin@gmail.com / +972-507-393376