Expression of will – the way to appoint a replacement guardian
The “expression of will” (hereinafter: “the document”) provides a solution to a difficult dilemma a parental guardian may face. A constant thought ingrained in the minds of parents of young or disabled children, as well as any guardian responsible for the welfare of another person, is what will happen if they pass away? Who will take care of the person they are responsible for (hereinafter: “the minor”)?
In the event of death, the guardian writes a will in which he specifies his wishes as to who will care for the minor. This is in regard to both the guardian’s replacement and the instructions the replacement will receive.
But what happens if during his life, the guardian becomes incapable of handling the minor? In this case, a will is not useful, since it is only relevant after the death.
A solution to this was provided in 2017, following Amendment 18 to the Legal and Guardianship law, 1962 (hereinafter: “the Law”) , and the Legal and Guardianship Regulations (Continuing Power of Attorney, Preliminary instructions to the Guardian and expression of will) (hereinafter: “the regulations“). Today, a guardian can prepare a document in advance, and arrange the issue of his replacement in case he loses his mental /physical competence to make decisions.
What is an Expression of will?
The document is intended for situations in which the guardian is alive, but has lost the ability to take care of the minor. In order to prepare in advance for such a case, the guardian may make a will and arrange the following:
- The identity of the substitute guardian (hereinafter: the “replacement”) who will take over if he loses his competence to take care of the minor (section 64 (b) of the Law);
- Instructions for the replacement, on how to handle and take care of the Minor (Section 64 (c) of the Law).
Who can draft an expression of will?
- The guardian who is a relative of the minor, and was appointed by court.
- The current guardian (who acts as a guardian, although not appointed by the court).
- A minor’s parent, since he serves as the natural guardian of the minor (section 14 of the Law).
The benefits of drafting an expression of will
The drafting of the document, has several advantages:
- The guardian remains in control over the minor’s future, even after losing his competence
The guardian can determine his replacement, as well as give him instructions on how to handle the minor. When no will is expressed, the court will decide the identity of the replacement.
Parents are the natural guardians of their minor children. A divorced parent is advised to draft a document, which will give instructions to the replacement so that decisions regarding the child will not be left exclusively to the other parent, should they lose their competence.
- Prevents family conflicts
Conflicts can arise due to the need to appoint a replacement guardian. Since the replacement identity is already determined, and even given instructions, these conflicts are avoided.
- A few replacement guardians can be appointed
The guardian can appoint a few replacements for varying issues (property, medical, etc.), thereby not giving full powers to one replacement.
Conditions for drafting an expression of will
- Only attorneys trained by the Administrator General will be able to draft an expression of will (Section 19 (a) of the Regulations).
- ” An expression of will, would be prepared in writing and signed by a lawyer” (section 64 (d) of the Law).
- The current guardian and his replacement are over 18 years of age.
- An expression of will, would be signed by the current guardian and replacement.
Depositing an expression of will
After signing the document, the Attorney is required to deposit it at the Administrator Generals office.
When will the Expression come into effect?
Once the guardian has lost ability to take care of the minor, the replacement will notify the Administrator General on the conditions for the document to take effect (section 32A (1) (1) of the law). The court will then hold a hearing for the appointment of a replacement guardian.
How will the court treat an expression of will?
The court is the body which appoints guardians. The court will discuss the documents’ content and decide whether to approve it.
The court has full discretion in appointing a guardian and is not obliged to follow the instructions in the document. However, the court will give the document considerable weight and as long as it does not harm the minor, it will approve its contents in order to execute the wishes of the current guardian (section 64A (f) of the law).
Interested in drafting an expression of will? COHEN, DECKER, PEX & BROSH LAW-FIRM ARE HERE AT YOUR SERVICE
At the Cohen, Decker, Pex & Brosh’s Law Offices, you will meet expert attorneys in family law who are authorized by the Administrator General to prepare an expression of will. Our attorneys will handle your request and accompany you throughout the process.