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Supported Decision-Making Service for Persons with Disabilities | Service Model
The Human Rights Center for People with Disabilitis
process. Following the enactment of the Patient's Rights Law, 5756-1996, and the Dying Patient
Law, 5766-2005, in particular, Israeli law has legal mechanisms that obviate the need to appoint
guardians (such as: medical power of attorney, advance instructions, or power of attorney pursuant
to the Dying Patient Law). Though legally controversial, there is an approach arguing that a
continuing economic power of attorney may also be drafted (before Amendment 18 to the law
which has expressly regulated this issue) which would also be valid in the event of intellectual
capacity deterioration. These planning tools enable senior citizens not only to choose their
substitute decision-makers (without the court's "approval") independently, but also subject the
decision-makers to the standard of the person's will rather than to their "best interests". However,
regretfully, studies and testimonies suggest that in practice, the courts almost completely ignore
these alternatives in context of guardianship appointment procedures for senior citizens.
A.3. Specific issues in the area of guardianship for senior citizens
Beyond the criticism described above which highlights the problematic use of guardianship with
respect to senior citizens generally (criticism which is also relevant to other populations such as
persons with disabilities), several specific points related to criticism against the application of
guardianship to senior citizens should be highlighted:
A.1.3.: The progressive nature of cognitive decline in old-age related diseases
(such as dementia)
Senior citizens may also suffer from recognized disabilities that cause a sharp, extreme and sudden
change in cognitive and functional abilities. Strokes, accidents (falls, traffic accidents, etc.), or
onset of mental disease and the like occur in older ages as well, and abruptly change the state of
awareness and functional abilities of the affected senior citizen. However, usually, and contrary
to the more common state of younger persons with disabilities, the loss of abilities is gradual,
progressive, and lasts years. Diseases such as Alzheimer's dementia or Parkinson's dementia are
not only characterized by the fact that they may continue to live for many years, but also by the fact
that the functional decline – both physical and mental – occurs over a period of time. For instance,
in terms of cognitive abilities, memory loss occurs gradually, when the different memory "types"
are damaged on different levels and in different stages of the disease. Therefore, it is not rare to
find senior citizens in different stages of their disease who have lost skills and abilities in certain
areas but at the same time still have a good command over skills and abilities in other contexts.
This "dynamic ability" can also be greatly affected by medication imbalance, periodic mental
states and many other variables (such as nutrition, fluids, or environmental context). Changes in
these variables may result in changes in comprehension and functionality levels within time spans
of hours or days. Therefore, not only is it impossible to conceptualize these changes in a “binary”
manner (competent/not competent), but the dynamics of the functional fluctuations are not linear
( although the general tendency is clear, it increases, decreases and changes).
A.3.2.: The complexity of cognitive evaluation tools and the limitation of screening
tests such as MMSE or MoCA
Directly related to the gradual and non-linear progressive uniqueness described above, one can
identify the difficulties and complexities in the execution of "competency assessment" tests for
senior citizen on the medical-scientific level. The above does not only stem from the absence
of professionalism in this field (as noted above), it stems from an inherent limitation of the
"measuring tools" customarily used in this field and the lack of understanding of their nature and
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