Guardianship

There isn’t a day that goes by without us doing regular, routine actions such as shopping for groceries, purchasing items and paying by check, signing agreements, managing bank account etc. these actions seem obvious to us, but there are people who are limited in doing these actions, either because they cannot take care of themselves or because they have to remain under the supervision of another person.

As human beings and citizens, we have legal rights and obligations. We have the right to privacy and autonomy, and at the same time we have an obligation to uphold the provisions of the law. The legal default is that every person is entitled to rights and obligations. On the other hand, there are cases in which the legal capacity for rights and duties can be stopped or annulled for a certain period, whether by judicial decision or by the provisions of the law. In the event that our legal capacity is limited, we will usually have a guardian who will have to take care of our needs, whether be it a person who will receive a special appointment as a custodian or a person who is the natural guardian in certain circumstances.

But what is legal capacity? When can legal capacity be restricted? What is a guardian, and how do you appoint a guardian? What is the role of a guardian? I shall answer all of these in the following article, which will deal with the law of guardianship in the State of Israel.

What is legal capacity?

The rule is that every person is competent to perform legal acts and every person is entitled to legal rights. This is stipulated in a law called the Capacity and Guardianship Law, 5722-1962 (hereinafter: the “Capacity Law”). Section 1 of the Capacity Law states that every person is” entitled to rights and obligations from the end of his birth until his death. “In other words, the legal default is that any person is entitled to perform legal actions. However, section 2 of the Capacity Law states that “every person is authorized to perform legal acts, unless this ability is denied or restricted by law or by a court ruling.” In other words, if the default is “legal capacity, the exception to this is expressed by restriction by the court or in accordance with the provisions of the law.

For example, there are cases where a person’s capacity is restricted legally. This is the law regarding minors, when a person is considered a minor until he reaches the age of 18. Until then, there is a restriction on certain issues concerning minors. For example, when a minor is accused of committing a criminal offense, he is treated more leniently than adults. On the other hand, a minor is not always able to make civil contracts and it is much easier to cancel a minor’s financial obligation, because he is not always aware of the consequences of his actions.

A minor usually has a natural guardian, that is, a person who is responsible for raising him and for the routine care of the minor. For example, section 4 of the Capacity Law states that an act performed by a minor, from a civil standpoint, depends on the consent of his representative. The same representative is the guardian (usually the parent who serves as a natural guardian). The capacity law also provides that a guardian of a minor or a representative on his behalf may cancel a legal act by the minor himself.

It is necessary to distinguish between legal actions carried out by a minor and which can be annulled, and the actions of a minor that require the approval of the court. For example, drafting a lease agreement, purchasing credit card items, etc. are the actions of a minor that will not be validated, except with the consent of a guardian, or in the language of the capacity law – the minor’s representative. On the other hand, there are actions carried out by a minor that cannot be confirmed by a guardian, but only by the court. For example, a minor’s conversion can be done only with the approval of the court, and only if it is an act that is in the best interests of the child or is not likely to harm him. The taking of a guarantee by the minor, registration in the Land Registry in the name of the minor, etc., are actions that also require the approval of the court (as stated in section 20 of the capacity law).

Up to now I have discussed minors, but legal capacity does not necessarily relate only to minors but also to people who are regarded as legally incompetent. The law states that any person in entitled to legal rights and obligations unless this right has been restricted. An additional exception to the legal capacity rule is defined in section 8 of the capacity law, which states that a person who, due to mental illness or mental impairment, cannot take care of his/her own personal needs and his/her economic and personal existence, may be declared legally incompetent. The same declaration may be made because of the request of a relative of that person or at the request of the State. If the court determines that a person is incompetent, from the moment of the declaration until its annulment, he/she will not be fit to carry out all the legal actions (rights and obligations), and a guardian will be appointed for him/her (as I will explain below). In addition, according to the capacity law, a person who has been declared incompetent shall be subject to the provisions relating to the revocation of the activities of a minor by his guardian.

Interim Summary: The rule of legal capacity refers to the fact that every person is entitled to fulfill his duties and to enjoy his rights. Every person is authorized to perform legal acts. But every rule has an exception and in accordance with the capacity law, there are cases in which a person’s legal capacity can be limited in accordance with court orders, or alternatively be limited by law.

What is a guardian?

A guardian is a person appointed by the court or appointed naturally in accordance with the provisions of the capacity law, to serve as a person who takes care of the existential and daily needs of a particular person. Accordingly, a guardian also has many obligations, such as the obligation to act fairly and reliably, the obligation to act in good faith, and the duty to weigh only considerations relating to the benefit of the sheltered person. A custodian serves as an authority with regard to the sheltered person. Therefore, the role of the guardian, whether a natural guardian (such as a parent of a child) or a guardian appointed by the court, is a very important role. Just to illustrate its importance, please note that a guardian may be criminally liable if he harms the sheltered person and may be liable for damages in favor of the sheltered person or third parties, if he behaves improperly and contrary to the standard expected of him. In addition, a guardian appointed by the court must report to the court, either directly or through the trust of the custodian.

In general, two types of guardianship should be distinguished. On the one hand, a guardian can be a natural guardian. This is the law when it comes to children and parents or relatives who are appointed to serve as custodians in case of parental death. On the other hand, there are custodians who are appointed to a specific subject, for the purpose of carrying out certain actions. For example, a guardian can be appointed for a certain period to serve as a “mouth” for a minor who needs to be adopted by a different family and the court must order so. In addition, a guardian can be appointed to care for an elderly person who is no longer able to take care of his/her needs. This kind of guardian is known to many people who at some point in their lives are appointed to serve as guardians of their elderly parents.

As stated, a guardian can also be appointed in cases where a certain action is required, for example, in the case where a person cannot make a short-term decision due to a state of health such as: in the case of a person being ventilated (in the hospital). In such cases there are decisions that require the appointment of a guardian for the body. In cases as above it is possible to appoint a temporary guardian, i.e., to appoint one ad hoc (for a specific purpose and not permanently). Another example of the need to appoint a guardian is in cases where the court appoints a guardian for property. In such a case, the guardian shall ensure the management of the economic affairs of the sheltered person but shall have no authority to manage other matters relating to the sheltered person’s life. There are circumstances in which a guardian is appointed for both property and body matters.  Cases where a guardian is appointed to the elderly is one example. In such cases, the appointment is made because the sheltered person is unable to take care of all his/her affairs, and therefore the authority of the guardian will be wider than the one for a focused purpose as described above. A common example of such cases is the appointment of a guardian for Alzheimer’s patients, since this is a disease that prevents the elderly to conduct their affairs normally. Therefore, Alzheimer’s patients usually benefit from the support of guardians (who can of course be their children).

Let us sum up what has been said so far: A guardian is a person with a very trustworthy role, whose function is to manage the affairs of a sheltered person who is unable to take care of his/her needs or is unable, at a particular point in time, to make decisions (for example, a person being ventilated in the hospital, regarding the performance or non-performance of a medical operation). A guardian may be appointed in cases of a person who needs nursing and/or an elderly person who cannot take care of his/her needs. Alternatively, a guardian may be appointed for the purpose of carrying out a particular act or for the representation of a person in a certain action (i.e. appointing a guardian for a minor who is to be adopted by another family). As I will explain, a guardian can also be a natural guardian, when it comes to parents and children. As stated, since the role of the guardian carries substantial trust and obligations, a guardian who does not do his/her job may be liable for criminal and tort damages.

What is a natural guardian?

Natural guardians are the parents of the minor. So is stipulated in article 14 of the law of capacity. This means that the parents are responsible for the education of their children, their bringing up and ensuring their economic existence, this as well as bestowing their children with tools for the future. By the way, the children have the duty of behaving respectfully towards their parents. Article 16 of the law of capacity stipulates that the children have to obey their parents and, obviously, respect them. It is true that the parents are the natural guardians of the children but there are some actions that require the authorization of the court and the parents’ authorization is not enough, when it comes to minors.

How do you appoint a guardian in practice?

The appointment of a guardian is done by means of a request to appoint a guardian. Such a request may be submitted by relatives of the Custodian and a representative of the State. The authorized court to which an application for the appointment of a guardian should be submitted is the Family Court. The application for the appointment of a guardian should include a written application in which the main reasons for the application for the appointment of a guardian should be included. In addition, at the time of submission of the application, a fee of 550 NIS (as of now) should be paid. The application must also include an affidavit duly authenticated by an attorney. It is very helpful to use the advice of a family lawyer, when filling out the application for the appointment of a guardian. If, however, the request is submitted without the assistance of a family lawyer, the required affidavit in court can be verified at a cost of 50 NIS (as of now).

In the framework of the application for the appointment of a guardian, the reasons for which the appointment is requested should be detailed at length. In addition, it is necessary to describe precisely the relationship between the applicant and the sheltered person. If the request is for the appointment of a guardian for medical reasons, it is recommended to attach a medical opinion or a psychiatric opinion to the application in order to substantiate the claim relating to the medical condition of the sheltered person. In the framework of an application for the appointment of a guardian which is submitted by a relative on behalf of the sheltered person, a letter of consent must also be attached to the application, which proves confirmation of the applicant of the appointment.

The rule is that every request to appoint a guardian for the body and property is submitted to the Attorney General. The latter is responsible for the public interest and is actually the “counter-party” to the request. If there is no prevention or suspicion of improper motives, then there will be no objection on the part of the Attorney General to the appointment. An application for the appointment of a guardian submitted to the court is discussed as soon as possible and usually requires the position of the other party, that is, the position of the Attorney General. After that, the court can rule for the issuing of an order. However, the court has the power to summon witnesses in order to gain a more in-depth impression of the nature of the request and its validity. Incidentally, in accordance with article 35 of the capacity law, the court is required to appoint a guardian, the person who will supposedly assume the position in the best manner to the court’s impression. Usually the default is a relative who is appointed as a guardian.

What circumstances does the court take in to consideration when appointing a guardian?

There is no doubt that the appointment of a guardian for a certain person is liable to violate the most basic rights of that person, since in one moment his main legal rights are expropriated or delayed. In one moment he/she is no longer a “his own master”. The words of the scholar Iris Marcus, in her book “Legal Capacity and Guardianship”, in Chapter 33 (April 2016 – Otzar Ha-Mishpat), are very appropriate: “This violation cannot be lightly done, from our system’s recognition of human dignity and liberties. So, the situations in which the legal capacity of a person will be restricted is such that where the person’s judgment is impaired so that the society sees a need to protect itself from that person – from his/her actions and from his/her faults caused by defective judgment of reality – and from others who are might abuse his/her poor and faulty judgment. Hence, there is no wonder that a custodial appointment is done cautiously and only in cases that really justify it. Today, the tendency is to avoid appointing a guardian and using another factor called “decision-support”, as I will explain below.

In order for the court to order the appointment of a guardian it must examine the conditions set out in section 33A of the law of capacity. Among other things, the court must check if Not appointing a guardian might harm the sheltered person.  In addition, the court must check if the sheltered person did not give a prolonged power of attorney, i.e. a power of attorney granting a third person the right to take care of the minor’s needs (this is done with first degree family members). The option of entrusting a power of attorney was added as part of an amendment to the law of capacity.

The most important condition in the Court’s considerations of whether to appoint a guardian is that the court must examine whether the cause can be achieved in a different manner. If the court feels that there is room to appoint a guardian, then this will be done. However, the court must specify exactly the powers of the guardian and for what reason he/she is appointed. In addition, the court must specify in the letter of appointment the period of time in which the guardian is appointed. It should be noted that a guardian can always apply to the court for instructions, in any matter that may be questioned regarding his authority to act for the benefit of the privileged person.

When a guardian is appointed to a person who is incompetent, the appointment is canceled automatically when (and if) a person ceases to be incompetent. On the other hand, any appointment of a guardian is limited in time, at the discretion of the court. The latter, of course, has the power to extend the term of appointment of the guardian.

What are the conditions for the appointment of a guardian?

Any person can be appointed as a guardian, as is stated in section 34A of the law of capacity. A corporation can be appointed as a guardian too and the Administrator-General (a government office). Note that there are associations (corporations) operating under the supervision of the Administrator-General, who are appointed by the court in the event that there is no other suitable person who can serve as a guardian. These associations employ specific people who serve as guardians for the elderly or other sheltered persons. Although any person can be appointed as a guardian, the court will appoint the person who is most suitable for this in accordance with the circumstances of the matter.

What is a decision supporter?

As mentioned above, the goal is to violate as few human rights as possible, which brings to the wish to avoid appointing a guardian, as much as possible. Therefore, there is also the possibility of appointing a “decision supporter” – that is, a person whose task is to assist another person to make informed and correct decisions without appointing the decision-supporter as guardian, with all that it entails, including the violation of the sheltered person’s autonomy.

Among other things, the role of the decision-supporter is to assist the sheltered person in ordinary daily activities, but without being a guardian. Incidentally, the possibility of appointing a decision supporter was facilitated not long ago, in a landmark ruling of the Family Court, where it was determined that the Custodian would be appointed to decisions’-supporter which will help her, rather than a guardian.

To sum:

He rules of legal capacity are our legal base as citizens of the country and more – our legal base as human beings, entitled to rights and obligations. There is no doubt that the capacity law deals with crucial issues – appointing guardians, taking care of sheltered people etc. this area is very significant and important and the court has a crucial role with in it. Therefore, it is very important to get legal advice from an experienced family lawyer.