Supported Decision-Making Service

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

The Human Rights Center for People with Disabilitis

appointment of decision-making supporters also in the context of the discourse on guardianship

for senior citizens can be identified (see, for instance, a manifestation of said tendency in the

US: Kohn, N., Blumenthal, J.A. & Campbell A.T. (2013). Supported decision making: A viable

alternative to guardianship? Penn State Law Review, 117(4), 111-1157).

Partly due to the above described criticisms against the manner by which the institution of

guardianship is applied to senior citizens, in Israel during the last three years, attempts have been

made to implement and offer supported decision-making mechanisms as an alternative to placing

older adults under guardianship. These attempts were made in the framework of the activities

of not-for-profit associations promoting the rights of older adults (including "Yad Riva" and

"The Law in the Service of the Elderly Association"), and in light of the leadership and personal

initiative of individuals such as Dr. Adv. Meital Segal-Reich and Dr. Advocate Michael (Mickey)

Schindler. Indeed, in several precedential judicial decisions given by family courts in Haifa and

the northern district, decision-making supporters were appointed to senior citizens who were

undergoing guardianship proceedings as an alternative to guardianship. This is, undoubtedly, a

promising and creative development whose progress should be followed, together with monitoring

of how successful the "supporters" are in performing their duties in practice. At the same time,

it should be remembered that as of yet, there are only early and few decisions that were given in

the context of "judicial development" without a supporting statutory infrastructure in place (this

refers to the situation which preceded the amendment to the law).

It is important to also note in this context that alongside the movement that encourages and

supports the development of the mechanisms for support in decision-making as an alternative

to guardianship for senior citizens, criticism has also been voiced, calling for caution in the

adoption of these mechanisms as far as they relate to senior citizens. This criticism was mainly

made in North America, where the preferred alternative model to guardianship for senior citizens

was usually "substitute decision-making", under which persons either designate, in advance, a

"substitute decision-maker" or a close family member is automatically appointed as a substitute

decision-maker, and in this context decisions are made reflecting the wills and preferences of their

family member.

This criticism can be summarized into the following arguments: firstly, as of yet there is no

sufficient evidence for the success of this approach in practice; secondly, it does not provide a

proper solution to situations which frequently apply to senior citizens, in which cognitive ability

is almost non-existent and "support" or substantive or meaningful dialogue with the senior citizen

who lacks cognitive abilities is not something that can be considered; finally, senior citizens –

unlike a significant part of the population of persons with disabilities – can prepare, as competent

adults, legal planning tools (such as powers of attorney, advance medical instructions, etc.)

without "support" or "assistance", and therefore, if and to the extent they reach the stages in

which they would need support and assistance in decision-making, this could be better and more

efficiently pursued simply based on the planning tools they had prepared, rather than by appointing

a "supporter" or any other assistant. This criticism, as such, does not invalidate or negate the

development of supported decision-making mechanisms as an alternative to guardianship for

senior citizens, but it definitely challenges the discourse in the area and calls for a thorough and

meticulous examination of it.