STEP Israel, Tel Aviv, June 18, 2019

1. Enduring Power of Attorney Two different approaches Israel and Germany STEP Israel, Tel Aviv, June 18, 2019 Dr. Judith Taic LLM Taxation (NYU), TEP Rechtsanwältin – Germany Attorney at Law – New York Advocate – Tel Aviv drjtaic@law-intax.com

2. Overview • Introduction • Legal Framework • Formation and Validation Procedure • Scope of an Enduring Power of Attorney • Duties and Obligations • Cancellation/Termination/Expiration • Control and Remedies • Recognition of Foreign Enduring Power of Attorney • Conclusion

3. Introduction • Person becomes incapable of managing his/her own affairs due to old age or health problems • No automatic legal representative (exception: Austria and Switzerland)

4. Introduction • Traditionally – legal guardian appointed by court • Enduring power of attorney as alternative to court appointed guardian • Comparison between the Israeli “יפוי כוח מתמשך" and the German “Vorsorgevollmacht”

5. Statistics Israel Germany approx. 10,000 enduring powers of attorneys deposited approx. 4 million enduring powers of attorneys registered and many more not registered

6. Legal Framework Enduring Power of Attorney Legal Guardianship Agency Law - Contract Law Israel Germany • Legal Capacity and Guardianship Law, 18. Amendment • 11.04.2016 • No special law • Agency law applicable /external powers and internal rights • Remains valid even if grantor becomes incapacitated • German Civil Code 1900

7. Formation – Registration/Deposit - Coming into Effect • Formation Germany Israel Special trained attorney • No special form requirements • Possible to grant an enduring power of attorney through oral agreement or by conduct. However for practical matters writing is advisable • In case of personal matters and health care matters powers must be granted explicitly and in writing • Recognized Standard Forms available • Notarized form required for • Real estate transactions • Acts and declarations at the Land Registry • Acts and declarations at the Commercial Registry

8. Formation – Registration/Deposit - Coming into Effect • Formation Grantor > 18 years and competent Israel Germany • Confirmation by the special trained lawyer, if doubts – expert opinion • No attestation required at time of granting

9. Formation – Registration/Deposit - Coming into Effect • Registration and Deposit Israel Germany • No deposit requirement • Registration optional • Registration • Deposit Prerequisite for validity

10. Formation – Registration/Deposit - Coming into Effect • Coming into effect Israel Germany • Loss of ability to understand his affairs • Declaration to Administrator General • Certification by Administrator General • No conditions • Stipulations can be inserted in the mandate agreement "לא מסוגל להבין דבר"

11. Scope of the Enduring power of attorney Living Will Vote Marriage Matters that can be covered? • Not for highly personal matters Will

12. Scope of the Enduring power of attorney • Property and Financial Matters • Property and Financial Matters can include: • Banking transactions • Conclusion of contracts • Submission of inheritance declarations • Filing of tax returns • Real estate transactions • Gifts and donations etc. • Self-contracting Israel Germany • Prohibition • Exemption from prohibition possible in mandate agreement

13. Scope of the Enduring power of attorney • Property and Financial Matters • Replacement attorney • Israel and Germany • Granting of sub-power of attorney • Israel and Germany

14. Scope of the Enduring power of attorney • Health Care and Personal Matters • Israel - possible • Germany • Health Care Proxy possible since 1999 • Power to consent to or withhold life sustaining medical treatment possible since 2009 • Power to consent to measures involving the deprivation of liberty – with approval of custodianship court – since 1999 • Power to consent to compulsory treatment – with approval of custodianship court – since 2013

15. Duties and Obligations of the Attorney • Decision making process - preliminary instructions • Responsibility and liability for damages • Compensation and reimbursement for expenses

16. Cancellation/Termination/Expiration of Enduring Power of Attorney Termination of Enduring Power of Attorney? • Specific events enumerated in the law – death of grantor • Revocation by the grantor – must be still of sound mind • Administrator General must be informed • Administrator General inquires every 3 years • Cancellation by the Guardianship Court Israel

17. Cancellation/Termination/Expiration of Enduring Power of Attorney Termination of Enduring Power of Attorney? • Revocation by the grantor or the attorney – grantor must be of sound mind • Death of the attorney • Death of the grantor – transmortal Enduring Power of Attorney Germany

18. Control and Remedies How much control? • Creation controlled by the Administrator General • Every 3 years inquiry by the Administrator General • Coming into effect controlled by the Administrator General • Notification requirements to the Administrator General • Court Approval for specific transactions • Court can limit the power of attorney, or add conditions, can appoint a guardian for different matters not covered, appoint an additional guardian, cancel the Enduring Power of Attorney and appoint a guardian Israel

19. Control and Remedies How much control? • No control approach • The abilities of the grantor vary over time • Enduring Powers of Attorneys often used within families • If control necessary - court and state will intervene • Custodianship Court can appoint “monitoring” custodian parallel to attorney • Revoke the Enduring Power of Attorney and appoint a custodian Germany

20. Recognition of Foreign Enduring Power of Attorney Recognition of Enduring Power of Attorney cross border? • Two different scenarios • Conflict rules of private international law • Hague Convention on International Protection of Adults (13.01.2000) • Applicable in Germany, France, Switzerland, Finland, Estonia, Monaco, Austria etc. • Law of habitual residence at time of granting • Choice of applicable law possible

21. Conclusion Israel Privatized form of legal guardianship Hybrid instrument – a tool to protect, based on contract law Germany

22. Conclusion Conclusion Israeli well meaning paternalism versus German efficiency

23. Thank You www.law-intax.com Dr. Judith Taic LLM Taxation (NYU), TEP Rechtsanwältin – Germany Attorney at Law – New York Advocate – Tel Aviv drjtaic@law-intax.com

24. Sources • Slide 1- https://www.consumer.org.nz/articles/power-of-attorney https://de.wikipedia.org/wiki/Flagge_Israels https://flaggenshop-muenchen.de/nationalfahnen/90-x-150-cm/1833/deutschland-flagge-90-x-150-cm • Slide 3-http://www.senioren.ch/themen/Heime%20-%20Pflege,55,Pflegebeduerftige-Menschen.htm • Slide 4- https://www.americanadoptions.com/blog/can-a-legal-guardian-put-a-child-up-for-adoption/ • Slide 7- https://iconscout.com/icon/lawyer-35 • Slide 14 - https://www.fortinet.com/blog/industry-trends/recent-healthcare-regulations-and-guidelines-providers-should-be.html • Slide 15- http://crmportal.stage.ogilvy.com/kennenlernen-maennchen.html • Slide 17- http://yoursalesplaybook.com/uncategorized/12-ways-to-get-the-most-from-your-linkedin-efforts/ • Slide 18- http://cho-associates.com/systemaudit.html • Slide 20- https://www.123rf.com/profile_niroworld • Slide 22- https://rubel.blogs.ruhr-uni-bochum.de/nettworking-die-idee-2/interact-change-move/https://www.iconfinder.com/icons/2303909/control_paternalism_paternalistic_politic_politician_restrict_restriction_icon