Supported Decision-Making Service

Supported Decision-Making Service for Persons with Disabilities | Service Model

The Human Rights Center for People with Disabilitis

guardianship for older adults and the provisions of the Legal Capacity and Guardianship Law

(Alon, Schindler, Hughes and Doron, 2013). In general, it is well known that the Legal Capacity

and Guardianship Law, 5722-1962 (hereinafter: the "Legal Capacity and Guardianship Law")

addresses the legal aspects of legal capacity, the restrictions imposed on legal capacity and the

appointment of guardians. The law does not manifestly refer to the population of senior citizens as

distinct from other populations – but rather provides solutions to persons who due to intellectual

or psychosocial impairment or for other reasons are unable to manage their affairs and make legal

decisions. However, in reality, the vast majority of adults currently under guardianship are senior

citizens.

Specifically, and as outlined in section 33(a) of the law, there are two reasons for appointing a

guardian for senior citizens: first, pursuant to section 33(a)(3) of the law, for a person who is

"legally incompetent", namely, "a person who, by reason of mental illness or defect of mind" is

unable to manage their affairs. The other, according to section 33(a)(4) of the law, for "any other

person who is unable, permanently or temporarily, to manage their affairs, in whole or in part, and

there is no one who is either authorized or willing to manage their affairs in their stead."

With respect to the first reason for declaring a person "legally incompetent", section 8 of the Legal

Capacity and Guardianship Law gives the court the power to declare a person legally incompetent

only when the person is unable to manage their affairs as a result of mental illness or intellectual

impairment. Court judgments indicate that said intellectual impairment or mental illness should

be permanent at least for some time, rather than a temporary condition. In addition, the inability

to manage one’s affairs pertains to all of the older adult’s affairs, or at least the vast majority of

them. Finally, declaring a senior citizen "legally incompetent" means a near complete restriction

of their legal capacity and a severe violation of their personal autonomy, “reverting” them back to

the status of "minor" as defined by the law.

With respect to the second reason, the appointment of a guardian for "another person who is

unable to manage their affairs" requires no medical reports, and it suffices to show that the person

is unable to manage their affairs in whole or in part, permanently or temporarily, for any reason

whatsoever and there is no one who is either authorized or willing to manage their affairs in

their stead (CA 445/81). However, the judgments of the Supreme Court indicate that guardian

appointments under this cause should also be subject to the presence of some impairment

impinging on the person's judgment (CA 4377/04).

Although an appointment for "another person who is unable to manage their affairs" does not limit

the autonomy and legal capacity of senior citizens as severely as it does in the case of persons

deemed legally incompetent, and senior citizens have the ability to continue performing certain

legal actions – there is still a significant violation of their autonomy. The ward is obligated, under

the law, to fulfill the guardian's instructions in all guardianship matters as determined by the court;

and most importantly, the guardian in fact manages the ward's affairs including management of

their bank accounts, assets, decisions on medical issues, living accommodation, etc.

Assuming that cause for appointing a guardian under the law does exist, pursuant to section 33(b)

of the law, the proceeding may be instituted and the guardianship application may be filed only

by the person's spouse or relative or by the Attorney General or their representative. When the

proceeding is launched, the identity of the proposed guardian should be specified. This can be

an individual, a corporation or the Public Guardian (section 34 of the law). In actual fact, most

guardians of senior citizens are relatives, while guardian corporations (such as the Fund for Care

of Wards) are appointed for older adults who have no family or who are abused by their family