Guardianship, Durable Power of Attorney, and Supported Decision-Making
Certain life situations require us to make decisions about our bodies or belongings. As older people may lose the ability to make such decisions, it is crucial to define and make decisions about these matters in advance. If such decisions have not been made in advance, it may be necessary to appoint a guardian.
In April 2016, the 18th amendment to the Legal Capacity and Guardianship Law was published. The amendment was designed to promote self-determination and decision-making, with a focus on respecting and upholding human will and dignity. The options are varied and intended to help people act in accordance with their desires, including the designation of a guardian, using the option of a durable power of attorney (medical, personal, and financial), and appointing a decision-making supporter.
Options for designation in the event of decision-making loss of capacity
| Guardianship | Durable power of attorney | Supported decision-maker | |
| Definition |
A person or an organization designated as a supported decision-maker to help another person make decisions about their medical, physical, and financial affairs. |
A person who is appointed by another person to make decisions on their behalf regarding issues predefined by the person who made the appointment. |
A person who is supporting another person who has not lost their capacity but experiences difficulty understanding information and making decisions in medical, physical, and financial matters. |
| A person’s definition | A person to whom a guardian has been appointed | The appointing person | The person taking the decisions |
| Definition of the designated person | A guardian one or more |
A person with power of attorney one or more |
A supported decision-maker one or more |
| Who does it suit? | A person who the court has found is incompetent to manage their own affairs. | A person who is mentally competent and aware who wishes to make advance directives to ensure that their wishes are respected in the event they become unable to manage their own affairs. | A person who the court has found to be mentally competent to make their own decisions, but after receiving support in understanding information regarding possessions or personal matters. |
| When to appoint | Following a loss of competency. When a person can no longer manage their finances or property, family members often file a request for a supported decision-maker. |
Possible at any stage of life, as long as the person has sound judgment and mental capacity. | Possible at any stage of life as long as the person is able to make decisions, even if they need accommodations or information to be explained |
| Who chooses the designated person? | The court appoints a person according to the recommendation of a social worker. | The person themselves. | The person themselves. |
| How does a person get appointed? | A guardianship proceeding begins with the filing of a “petition” or a request in a family court. The court typically orders a social worker’s official report, and the social worker provides a recommendation to the judge, who decides whether to appoint a guardian. The appointment is granted by the court. |
A lawyer can draft a document that should be deposited with the public trustee. This document will take effect when the person becomes incapacitated, and it does not require court approval. |
The appointment is made with the consent of the decision-maker and submitted to the court’s approval, usually after obtaining a social worker’s report. |
| Responsible Ministry | Ministry of Justice | Ministry of Justice | Ministry of Justice |
| Summary | An option that warrants close scrutiny and careful consideration to assess its appropriateness before taking a decision | A recommended option that provides control and allows for future planning. | An option that permits obtaining help and support while still reserving the right to decide for the decision-maker. |
Guardianship
As long as you are completely capable of making decisions, you can designate anyone you wish to handle your medical, personal, and functional affairs with a power of attorney. However, the necessity for someone close or an organization to make these decisions arises when a person is medically or functionally unable to make any kind of decision and a doctor deems that they are incompetent to do so.
A guardian must only be appointed through legal proceedings. The hospital social worker can help with the selection of the guardian (for instance, if there are many family members and choosing among all of them is required), but only a court of law will decide on the designation itself.
When a guardian is chosen for a person, it means that they are incapable of making decisions and that a person with a power of attorney has not been designated in advance.
Types of guardians
A guardian can be appointed for one or more issues or for all issues. The following are the issues that require a guardian:
- A guardian for personal matters (previously known as a guardian of the body): The guardian is responsible for handling the person's medical and personal needs. For instance, if the patient needs to be discharged from the hospital or an institution and go home, or if surgery is required
- A guardian for the body and for belongings: This guardian is the decision-maker on all issues related to the patient. The guardian’s obligation is to attend to all the needs of the patient under their responsibility, take care of their assets, manage them appropriately, develop the assets in their favor, and represent them in any legal proceedings.
- A guardian for medical matters: A guardian that makes decisions regarding medical issues, such as approving treatments like blood testing or surgery. It is possible to ask to have a guardian appointed solely for medical matters. No medical guardian will be necessary if the patient signed a power of attorney or advanced medical directive when they were competent.
- A guardian for a specific matter: A guardian for making decisions regarding specific medical procedures, for instance, leg amputation. The guardianship is limited in time for the specific procedure required.
Who can be appointed as a guardian
It is best to choose a family member or another caregiver who has regular contact with the person concerned and is competent to serve as the patient's representative (they must give their approval because the role involves responsibility). In some circumstances, close friends may also be chosen. If no one is available, you can direct them to another company or a non-profit organization.
If it is determined that the patient is having difficulty managing their affairs, a family court petition should be made. Usually, the court requests an official report from a social worker, who then evaluates the request and recommends a course of action to the judge. The decision to appoint a guardian for the patient is made by the court. Prior to designating someone, the social worker reviews the situation.
The appointment of a guardian may be made for all or just some of the patient's financial and personal concerns. A single individual can act as the guardian for every matter, or multiple people can share the responsibility. For instance, one sibling will serve as medical guardian, and another will be responsible for the issue of belongings.
The court of law receives recommendations from welfare bodies about whether a guardian is needed and who should be appointed. The General Guardian is responsible for overseeing the guardians after they are appointed.
The guardian is responsible for carrying out their duties with commitment and sensitivity, acting in accordance with the patient's wishes and in their best interests, conferring with them, and as much as possible, updating them, as well as making decisions that affect them.
The Sharia Court and family courts are the only tribunals with the authority to appoint a guardian. Depending on the judge's ruling, the guardianship letter may be issued as a temporary or permanent order.
Making a guardian appointment for a person without a family
If a person who has no family members (formerly known as “confidential” and currently known as a person for whom a guardian has been appointed) is hospitalized in a medical institution, the manager of the institution or the social worker should initiate a request for the appointment of an external guardian and submit the request through the legal advisor of the Ministry of Welfare.
Submitting the request for guardianship
To be granted guardianship, one must fill out a request and a declaration form (in two copies). Relevant documents must be attached, and they are reviewed by a lawyer or the court secretariat.
Further information regarding the application procedure for designating a guardian for an adult (Hebrew).
A request for appointing one or more guardians for the same person may be submitted to the court by a spouse wishing to be designated as a guardian, or alternatively, through the attorney representing the patient. If the individual who needs a guardian is hospitalized, the hospital social worker can assist with filling out the paperwork and sending the request to the court.
How to submit a request for guardianship
A continuous power of attorney is a legal document that can be used as a substitute for designating a guardian. The continuous power of attorney allows every adult to decide who will manage their affairs in the future should they become unable to take care of themselves.
According to the law, every person over the age of 18, healthy or infirm and deemed mentally competent to make decisions about their health, finances, or personal life can create a continuous power of attorney document. It is crucial to emphasize that their will is what counts.
In the event that the patient is unable to handle their own affairs in the future, the person with the power of attorney will be permitted to act on their behalf. A continuous power of attorney can only be used for certain aspects of medical, personal, or financial problems.
The difference between them is that a power of attorney in financial matters should be signed in front of an attorney who has received training from the General Guardian. A power of attorney in matters of the body (currently known as a guardian for body matters), on the other hand, can be signed in front of a nurse, a doctor, or a social worker and is free of charge.
Who can be a person with power of attorney
Power of attorney may be granted to any adult over the age of 18. It is advised to select a trustworthy individual who has demonstrated their loyalty and who one can be sure will respect the patient's decisions and wishes.
The people designating the person with power of attorney will also choose the issue they will be authorized to act on. It is possible to give power of attorney to multiple people, each of whom is in charge of a separate responsibility. For instance, the youngest son will have power of attorney for financial matters, and the eldest daughter will have one for medical matters.
Power of attorney can also include Advance Directives, in which the patient specifies how they want the person with power of attorney to act in the future.
Further information on continuous power of attorney is available on the Ministry of Justice website (Hebrew)
The difference between guardianship and continuous power of attorney
The main difference between guardianship and continuous power of attorney is that a guardian is designated after a person becomes incapable of making decisions, while a continuous power of attorney is signed by a person who is still competent and allows them to appoint someone to make decisions for them if they become incapacitated in the future. The power of attorney only becomes valid when a person becomes incapacitated, and guardianship becomes valid from the moment of appointment by the court.
Supported decision-making
Supported decision-making is a legal arrangement that allows an adult who has difficulty understanding information and making decisions to make decisions with the help and support of another person. The supporter helps adults gather information from third parties and facilitates the decision-making process. In some cases, the supporter may also help the adult implement the decision.
A decision-maker (supporter) is appointed by a court of law
A decision-maker can be appointed for anyone who meets the following conditions:
- • An adult over the age of 18
- They can make their own decisions regarding their affairs with support
- They can express their will, even if they need accommodations or information to be explained
- They agree to have a decision-maker appointed for them
A decision-maker can be anyone who meets the following conditions:
- An adult over the age of 18 who permanently resides in Israel
- They make decisions in favor of appointing the supporter to the role
- They agree to serve as decision-makers for the purpose of decision-making
- No guardian has been appointed for the supporter, and no continuous power of attorney has been drawn for them
- The supporter is not in a situation of conflict of interest between this role and other matters or roles under his care
Further information on supported decision-making is available on the Ministry of Justice website