Supported Decision-Making Service

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

The Human Rights Center for People with Disabilitis

members. As a general rule, a guardian will be appointed provided that the guardian agrees to

the appointment, and the court finds them suitable to fulfill the duty of protecting the ward's best

interests.

Procedurally, an application for a guardianship appointment should enclose an affidavit supporting

its facts. A medical report describing the person's medical condition should also be provided

(this last requirement applies only when a declaration of legal incompetency is requested). In

addition, it is incumbent upon the court to hear the person prior to the appointment (however, this

obligation applies only when the person is capable of understanding the matter and their opinion

can be clarified – section 36 of the law). Finally, the consent of the designated guardian should

also be included with the application.

For the "day after" the appointment of the guardian, the law prescribes several material

arrangements. Firstly, it obligates the guardianship to operate for the benefit of the person.

Secondly, the law obligates guardians to hear the person before making decisions in their matter.

Thirdly, the law specifies a host of issues in which guardians are not authorized to make decisions

absent the court's approval. Finally, the law establishes a general reporting scheme to be submitted

by guardians as part of structured monitoring and supervision over their activities. In practice,

supervision over guardians in Israel until recently focused only on the aspect of property and

financial management. It was only in the last year that a pilot was launched by the Guardian

General for the development of a monitoring and supervision unit which would also examine the

activities of guardians with respect to decisions pertaining to the person and their care.

The scope of authorities and detailed judgments in the area of guardianship for senior citizens is

limited. Despite the fact that there are thousands of judgments in which guardians are appointed

for senior citizens, the majority of these judgments are not published (as they are privileged

according to the Family Court Law) and usually do not include deliberations or detailed and

thorough legal explanations. Nevertheless, the judgments given by the Supreme Court in this area

express recognition of the importance and great caution which should be exercised when applying

the law to senior citizens. For instance, in the case of Dr. Dvora Cohen (CA 1233/94) the Supreme

Court held as follows:

In exercising the power, the basic normative premise is that the fundamental

right of every person – including older adults – is to have their dignity, privacy,

property and personal autonomy protected. These rights which have always

been the supporting pillars in our legal system, are currently entrenched in

Basic Law: Human Dignity and Liberty".

In view of the above, the court proceeded to hold: "No such violation shall exceed proper limits,

nor shall it be greater than required."

A.2. The problems in the current situation

The legal situation described above has been extensively criticized (for an article summarizing the

criticism in the area see: Barel M., Doron I., Striar R. (2015). Guardianship – Critical Overview.

Social Security

, 96, 55-85). Said criticism relied in part on general arguments from the perspective

of the conceptualization of rights of senior citizens and anti-ageism, and in part on findings of

empirical studies in the area conducted in Israel. Roughly, the criticism may be described as

touching on two main aspects; one – the procedural aspects of the current situation; and the other

– the substantive aspects of the current situation.