The Right to Personal Autonomy

The right to personal autonomy has been recognized in law as a basic right of every human being. It encompasses the positive rights of an individual to develop their personality freely, to express their aspirations, and to make autonomous choices, as well as the negative right not to be subjected to arbitrary restrictions. The right to autonomy of many people with disabilities is often injured when a guardian is appointed to oversee their affairs. The appointment of a guardian significantly limits the individual’s ability to make independent decisions and lead an autonomous life. Accordingly, the right to personal autonomy means that each individual has the right not to have a guardian appointed unless and until all other, more moderate options have been exhausted. Moreover, a “ward” (that is, a person for whom a guardian has been appointed) is still entitled to maintain their personal autonomy and to be involved in decisions relating to them. They have the right to oppose the guardian’s decisions, and even the right to submit a request to the court to nullify the guardianship.

In Israel, the family courts have appointed guardians over the person and/or property of tens of thousands of people. Of all the rights people with disabilities struggle to enjoy, the right to personal autonomy is the most basic right – and it is also the right that is currently most often violated in Israel. A person for whom a “property guardian” has been appointed is deprived of most of their economic rights. Their bank account is managed by the guardian: bank branches will not provide financial information, and they are obliged to follow the guardian’s instructions concerning the use of their funds. In the case of a “personal guardian,” the level of restriction is even greater. The guardian can decide on changes in the individual’s place of residence, including transfer to an institution against their will, and can also make medical decisions concerning the individual. Although the law (Legal Capacity and Guardianship Law, 5722-1962) includes various provisions regarding the rights of an individual during the appointment of a guardian, these rights are often not observed in practice. A report of the State Comptroller published in 2004 (State Comptroller’s Report 54B) raised numerous defects regarding the state’s supervision of guardians in the context of protecting the rights of people with disabilities. Among other problems, it emerged that the ward’s human rights were not maintained during the process of appointing the guardian (hearing the ward’s opinion in court); the state does not supervise guardians of person; and the processing of the appointment of a new guardian following the death of a previous guardian is unreasonably lengthy (see the Knesset research report discussing and summarizing the State Comptroller’s report).

Bizchut believes that the right to personal autonomy implies the right of every individual to determine their own life and make their own decisions. This right should only be restricted in extreme cases, and only to the extent required. Bizchut advocates the amendment of the Legal Capacity Law in order to include more moderate options apart from the appointment of a guardian, such as a close friend or the possibility of signing a power of attorney. Bizchut also believes that even in cases when it is necessary to appoint a guardian, the appointment should be as temporary and partial as possible – an approach that is almost never adopted by the courts. Lastly, supervision of the functioning of the guardian should be improved, with an emphasis not only on promoting the benefit of the ward, but also on promoting the ward’s own wishes.

Bizchut is working in several spheres to promote the right to personal autonomy of people with disabilities. Firstly, Bizchut is participating in discussions held by the Ministry of Justice regarding the amendment of the Legal Capacity Law in order to include more moderate and limited solutions that respect individual will and autonomy. Bizchut also raises awareness of this issue among people with disabilities by means of a telephone hotline and lectures. Bizchut provides information, guidance and supervision over the telephone for people with disabilities who wish to submit an application for the nullification of a guardianship, the limitation of a guardianship, or the appointment of a different guardian. Bizchut does not process requests relating to the supervision of guardians, but helps refer such complaints to the Custodian General.

In order to understand the right to autonomy and the way it can be maintained in the context of the appointment of guardians, several important concepts should be clarified. What is the legal capacity of an individual? What is the difference between a ward and a legally incompetent person? And what is the difference between a guardian of the person and a guardian of property? After clarifying these concepts, we will address the proceedings for the appointment of guardians and the place of human rights in these proceedings. We will consider all the key players in applications for the appointment of guardians – the individual, his parents and extended family, the family courts, the welfare office and welfare authorities, the Custodian General, and external bodies providing guardianship services. We will discuss who may be appointed as a guardian; how the court determines this question; and what is the role of the ward in deciding on the identity of the guardian. We will discuss briefly the obligations imposed on guardians as detailed in the state guidelines. We will examine the relationship between the ward and their guardian, including the question of what happens when disagreements emerge between the two. We will explain how to submit an application to nullify a guardianship or to replace the guardian, and we will also discuss the process of applying for the appointment of a guardian for a vital medical action. Lastly, we will examine the legal question of the validity of legal actions undertaken by a ward who has an appointed guardian.

It’s your right to know!
The information below aims to enable you – a person with a disability for whom a guardian has been appointed, or is due to be appointed – to understand this proceeding and your rights. This information will also help the relatives of people with disabilities to take decisions that do not unnecessarily harm the freedom and rights of their relative during the process of considering the possibility of guardianship.

Basic concepts
Legal capacity – a legally capable person is someone who is recognized as able to undertake legal actions and to take decisions that require the consent or recognition of others. For example, a person must be legally capable in order to sign a contract, purchase a product, or rent an apartment.
Ward – a ward is a person for whom a guardian has been appointed by the court.
An incompetent person is someone who does not have legal capacity. The court is entitled to declare someone legally incompetent if they cannot manage their own affairs due to mental illness or intellectual disability. In practice, the court very rarely makes such a declaration.

What is the difference between a ward and someone who is legally incompetent?
The difference – a ward enjoys full legal capacity, whereas a legally incompetent person does not.
The similarity – a guardian may be appointed both for a ward and for a legally incompetent person.

Guardianship – a person or body appointed by the court to take decisions for another person and to manage their affairs.

Natural guardianship – until a person reaches the age of 18, their parents are that person’s natural guardians. Accordingly, they can take numerous decisions relating to the person’s life. Once someone reaches the age of 18, natural guardianship expires, and a guardian may only be appointed after a special application has been submitted to the family court.

Personal guardian – a guardian who is responsible for all the individual’s personal affairs. A personal guardian is responsible for:
• Living arrangement
• Physical needs – clothing and proper nutrition
• Medical needs – monitoring medical condition, medication, consent or refusal for medical treatment
• Employment – finding an appropriate vocational framework; salary conditions
• Realizing rights – contacting the appropriate authorities to ensure the receipt of all rights, such as National Insurance or the “rehabilitation basket”
• Leisure – developing fields of interest and encouraging enrichment and leisure activities
• Psychological, social and spiritual needs – such as community integration, coping with psychological distress, and maintaining contacts with the family

Property guardian – a property guardian (or estate guardian) is responsible for all the individual’s property and financial affairs, including:
• Managing the ward’s bank account and assets
• Maximizing the ward’s financial rights (including submitting financial claims)
• Protection against financial exploitation
• Developing the ward’s ability to act independently in the financial sphere
• Approving expenses to improve the ward’s quality of life

Guardian for a specific matter – a guardian may be appointed to deal solely with a specific matter, such as:
• Guardianship for the purpose of deciding whether to undergo a particular operation
• Guardianship for any financial expense greater than NIS 5,000
• Guardianship regarding the living arrangement

Who are the key players?
The person with the disability – most applications to appoint a guardian concern people with disabilities and elderly people. Guardians are often appointed for people with disabilities, even when the disability has no impact on the individual’s ability to make their own decisions. This reflects a paternalistic attitude toward people with disabilities and an assumption that they are not able to take full responsibility for their own lives. Many people with disabilities discover at the age of18 that an application has been submitted to appoint a guardian for them.

Parents and family – until the age of 18, an individual’s parents are his or her natural guardians. In some cases, parents (or other relatives) submit an application to be appointed as their children’s guardians beyond the age of 18, due to their genuine desire to continue to attend to their wellbeing. Part of the problem in opposing applications for guardianship is that this involves a struggle against the individual’s closest loved ones. In most cases, the court that decides on the appointment of a guardian will prefer to appoint a close relative.

The family affairs court – this court examines all applications relating to guardianship. There are 14 family affairs courts in Israel. The nature of the hearings in the family affairs courts is less formal than in most other courts.

Welfare officer for legal arrangements – a social worker from the welfare service responsible for submitting surveys (reports) to the family affairs court, including professional recommendations on the subject of guardianship. The welfare officer functions as the long arm of the court, meeting all the relevant individuals (the individual, the guardian, relatives, care professionals), and the court attaches decisive weight to her recommendations.

Welfare authorities – the subject of guardianship may come up during the course of routine contacts between the welfare authorities and people with disabilities. In many cases, the social worker asks the court to appoint a guardian for a person when she considers this necessary. In any proceeding relating to guardianship, an attorney from the Ministry of Social Affairs will be present to represent the state’s position.

Representative of the attorney-general on behalf of the Ministry of Social Affairs – attorneys from the Legal Department of the Ministry of Social Affairs representing the state in court in applications for the appointment of a guardian. Since the attorney represents the Ministry of Social Affairs, his or her position is influenced mainly by the welfare authorities and the welfare office for legal arrangements. In any case in the family affairs court relating to guardianship, one of the parties will be the Ministry of Social Affairs, through its attorney (the official name of the state in these cases is “the Representative of the Attorney-General.”)

The Custodian General – the body in the Ministry of Justice responsible for supervising the functioning of guardians.

External guardians (guardianship services) – some companies and associations exist for the sole purpose of providing guardianship services. When the court forms the impression that there is no-one in the individual’s immediate environment who is suitable to serve as a guardian, or when there is a dispute within the family regarding the identity of the guardian, it may appoint an external guardian. The best-known and largest external guardians are the Fund for the Care of Wards, S.P.R., and Akim Guardianship.

When will the court appoint a guardian for me?
When it forms the impression that you cannot manage some or all of your own affairs by yourself, the court may decide to appoint a guardian.

What are the alternatives to the appointment of a guardian?
A person who receives help from those around them, and who is capable of managing their own affairs with this help, does not require a guardian. Bizchut argues that the court should take into consideration the support and help available to an individual when deciding whether it is necessary to appoint a guardian.
If the main reason for appointing a guardian is concern that the individual may be subject to financial exploitation, there are several simpler solutions that reduce the injury to individual autonomy:
1. In the case of property – a warning note can be registered in the land registry stating that the property is only to be sold with the approval of the court or of another individual.
2. In the case of a bank account – an additional signature can be required for actions in the account, and the amount of money that may be withdrawn can be limited.
3. In the case of a credit card – the use of the card can be limited to the desired amount.

What are the intermediate solutions in the framework of guardianship?
A. Guardianship for limited or specific matters – a guardian can be appointed for a specific matter, so that the individual continues to be autonomous in all other matters. For example, a guardian can be appointed for any expense exceeding NIS 5,000 in any given month, so that the individual enjoys autonomy up to that sum. A guardian may also be appointed for medical matters, but not for the other matters usually handled by a personal guardian.
B. Temporary guardian – the goal should be to appoint a guardian for the shortest possible period of time. A person with a disability who is facing a particular crisis may only need a guardian while the crisis lasts, and in such cases it is important to appoint a temporary guardian.

How does the court decide who to appoint as guardian?
The court appoints the person it considers most suitable, in the interests of the individual concerned and in the circumstances of the specific case.

1. The first preference is for someone close to the individual (a relative or trusted acquaintance).
2. In some cases, an external guardian will be appointed:
a) When there is disagreement within the family about the appointment.
b) When the court believes that the person close to the individual is not suitable to serve as their guardian.
c) When the individual opposes the appointment of any person close to them.

The legal proceeding for appointing a guardian

Who is entitled to request the appointment of a guardian?
1. A spouse/partner.
2. A relative (parents, children, siblings, grandparents, and grandchildren).
3. The state, through the welfare offices and the representative of the attorney-general.
4. The person with a disability, or their representative.

How long does the process take?
In urgent cases, a guardian may be appointed in a single day. In other cases, however, due to the pressure of work facing the courts and the welfare workers, the process can take several months.

What does the process involve?
1. Submission of the application:
a. A written application must be submitted explaining why a guardian should be appointed.
b. A medical opinion must be attached discussing two questions: Can the ward manage their own affairs, and can they express their own opinion regarding the identity of the guardian?
c. An affidavit is to be attached, signed by an attorney, and stating the details of all the individual’s first degree relatives (parents, siblings, and children above the age of 18), noting which of the relatives agree or disagree with the application.
d. Payment – submission of the application entails payment of a fee of approximately NIS 400. Exemption from payment of the fee can be requested on economic grounds.
2. Appointment of the welfare officer – in most cases, the judge will appoint a welfare officer for legal arrangements to examine the application (although in some cases the judge may grant the order without a review). The welfare officer speaks to the individual concerned and to anyone else she considers relevant (relatives and care professionals). By law, those involved must cooperate with the welfare officer.
3. Review of the welfare officer – the welfare officer submits a review including recommendations relating to guardianship. The officer may also include recommendations that go beyond the aspects raised in the application. For example, if an application is submitted for appointment of a property guardian, the officer may recommend that the guardian also be responsible for personal matters.
4. Hearing – the court will hold a hearing in cases when there is disagreement among the parties.
5. Decision and granting of the order – at the end of the proceeding, the court makes its decision. The court may decide to grant an order for the appointment of a guardian for a specific matter or for all matters, or it may decide not to appoint a guardian.

What legal help can I get?
1. Help in completing the forms – some of the family affairs courts have law students to help fill in the forms.
2. Legal aid from the Ministry of Justice – on the basis of a means test and the chances of success, a unit in the Ministry of Justice provides legal aid through attorneys.
3. Social organizations – several organizations provide assistance in the field of guardianship for different target populations, including Yad Riva, Yedid and Community Advocacy. Bizchut provides legal assistance in the form of information, advice, telephone supervision and, in some cases, representation.

What are my rights in the proceeding for the appointment of a guardian for me?
1. The right to be a party in the proceeding – in many cases, the proceeding takes place “over the head” of the individual most concerned, who is not given an opportunity to be part of the process. It is important to emphasize that every individual has the right to be an active party in a proceeding for the appointment of a guardian over their affairs.
2. The right to inspect and respond to the review of the welfare officer – the welfare officer’s review is supposed to be given to the involved parties, who have the right to respond to the review before the court.
NB – in many cases, the review is not sent to the parties. Accordingly, it is necessary to contact the welfare officer or the court secretary and request a copy of the review.
3. The right to a hearing – the court must hear the opinion of the person who is the subject of the application to appoint a guardian, if that person is capable of understanding the matter and of expressing their opinion. Regrettably, in many cases this right is not implemented.
NB – if an application relating to guardianship involving you has been opened at the family court and you want the judge to hear your opinion, submit a written application to the court asking for a hearing to be held in the application to appoint a guardian, and requesting that you be summonsed to the hearing. This will ensure that the judge hears your position directly.
4. Your opinion must be taken into account in the decision – your opinion is important in two respects:
a. Whether or not to appoint a guardian – perhaps you agree to the appointment of a property guardian, but not a personal guardian.
b. Who will be appointed as your guardian – it may be that you agree in principle to the appointment of a guardian, but you want the guardian to be your friend, rather than your parents.
The court must pay attention to your opinion.

What are the guardian’s obligations?
The Custodian General has prepared a detailed information sheet explaining the obligations of a guardian. You can find the information on the internet under “Care basket for wards – instructions for guardians.”
Briefly, we should note that a guardian is not responsible for paying an individual’s expenses, but is responsible for many affairs under his or her mandate, whether this includes personal matters or property matters.

What is the relationship between a ward and a guardian?
By law, the guardian must listen to the ward’s opinion. The ward must follow the guardian’s instructions in the matters under his or her responsibility.
If there are disagreements between a ward and a guardian, either side may turn to the court and request its intervention and decision.

Nullification or replacement of a guardian
A person for whom a guardian has been appointed may submit an application to the court to nullify the appointment, to restrict its scope, or to replace the guardian.
For example:
1. A person may request the nullification of the guardianship, so that they will be completely autonomous.
2. A person may request that the guardianship be restricted to apply solely to property affairs and not to personal affairs.
3. A person may request that a close friend be appointed guardian in place of a relative.

How are these applications submitted?
You must go to the family affairs court where the decision to appoint the guardian was made and submit an application. The application can be written by hand. It must explain why, in your opinion, the previous decision of the court should be changed.
The following are some examples of grounds:
1. I was not permitted to appear in the previous hearing. If the court had seen me, it could have formed the impression that I do not require a guardian.
2. Since the previous decision, my condition has changed. I have undergone rehabilitation and I can now manage some of my affairs by myself.
3. I may need a property guardian, but there is no reason why someone else should decide where I live or work. Accordingly, I am asking that my personal guardianship be nullified.

NB – it is a good idea to attach the opinion of a professional (a social worker or a physician, such as a psychiatrist) explaining why you can manage your own affairs and do not require a guardian.

After submitting the application, the court will ask the welfare officer to submit a review. From this point, the proceeding is very similar to the proceeding for the appointment of a guardian.

What is the validity of a legal action taken by a ward for whom a guardian has been appointed?
As we mentioned in the definitions section, there is a difference between a ward and someone who is legally incompetent. A ward is legally competent, even though a guardian has been appointed for some or all of their affairs. Accordingly, a legal action taken by a ward, such as signing a standing order or purchasing an item, is not automatically invalidated.
However, contract law allows for the nullification of a legal action if it can be shown that an individual was the subject of financial exploitation.