Supported Decision-Making Service

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Supported Decision-Making Service for Persons with Disabilities | Service Model
The Human Rights Center for People with Disabilitis
pay alimony). On the other hand, active capacity, namely the capacity to perform legal actions
is based on a person's judgment ('Aqal), and may be full, partial or non-existent (revocation of
capacity). Sharia law presumes active capacity from adulthood to death. However, active capacity
may be curtailed if a person's judgment is impaired. Minors from the age of seven until adulthood
have partial capacity and minors younger than seven years old have no legal capacity to perform
actions. Persons with intellectual and psychosocial disabilities can fall under any one of the above
categories.
A key concept pertaining to a person's judgment is Rashad which refers to a person's capacity
to manage financial matters. Legal actions taken by a person who does not have legal capacity –
are null and void ab initio. Under certain circumstances, the guardian can validate them a priori
(namely, before the transaction is made).
Finally, the main considerations for the appointment of a guardian are whether the person needs
protection and whether a person's dignity needs to be protected and the appointment of a guardian
is the way to do so.
The Sharia courts are somewhat affected by the Legal Capacity and Guardianship Law. In the
past, Sharia courts have not considered it at all, based on their position that Sharia and Islamic law
are comprehensive enough to regulate the matter on their own right. However, in HCJ 1129/06,
the High Court of Justice ruled that Sharia courts are bound by the laws of the State of Israel when
considering issues involving legal capacity and guardianship applications.
Guardianship Applications
Most guardianship applications in the Sharia courts pertain to persons with intellectual disabilities.
To the best of our understanding, guardianship is seldom used for persons with psychosocial
disabilities. As noted, the medical report plays a crucial role in the appointment procedure and
when persons with intellectual disabilities are concerned – the decisive document is the report of
the evaluation committee. Based on the medical report, the Qadi decides whether the appointment
of a guardian on a full or partial basis is required. According to the representatives of the Sharia
courts we interviewed, the court's approach is that the failure of the court or the Qadi to meet
with the ward will constitute cause for revocation of the decision to appoint a guardian. This is
a progressive approach compared to the approach customarily taken by family courts where the
judges seldom meet the person.
In a 1994 judgment issued by the Sharia Court of Appeals (Sharia Appeal 50/94, given on July 5,
1994), it was held that since guardianship proceedings involve the revocation of rights, they must
be based on solid grounds. Therefore, an expert report was required and a report issued by a health
fund (Kupat Holim) physician was insufficient.
The Qadi's role in guardianship proceedings is substantially different from the role of a family court
judge. The Qadi is regarded as holding the position of acting Guardian General for persons with
disabilities. Because of this responsibility, Qadis sometimes initiate the appointment themselves.
Since the Qadi is responsible for all persons with disabilities, he sometimes initiates the
appointment of a guardian for a person in need himself, and supervises all guardians appointed.