Request to Appoint a Guardian
The request to appoint a guardian is usually submitted when an adult loses his ability to make decisions for himself in a rational manner, or when a minor requires a guardian because his parents (who are his natural guardians) are unable to take care of him, are not alive, etc. Appointing a guardian is a process that requires involvement and approval from the court. The law that delineates the various stages of appointing a guardian is the Legal Capacity and Guardianship Law, 1962 (hereby: “the law”). In this article we will describe how to appoint a guardian.
Who is Appointed as a Guardian?
Minors are appointed guardians naturally:
- “The parents are the natural guardians of the minor children” (Section 14 of the law).
Section 33(A) of the law details when the court is allowed to appoint a guardian;
- “To the minor of whom both parents are deceased, or have been declared incompetent, or their guardianship of the minor was revoked or has been restricted, or they are not capable of fulfilling their obligations towards the minor or they avoid doing so without reasonable cause.”
- To someone declared incompetent (someone with no legal capacity).
- To an adult who is incapable of taking care of his own affairs and there is no other person who is authorized to take care of him.
- To someone who cannot yet be identified.
- To a fetus.
Who is Authorized to Request to Appoint a Guardian? Where to File the Request?
Any one of the following parties may request to appoint a guardian:
- Spouse
- Parent
- Family member
- Attorney General of Israel or his counsel
The request to appoint a guardian will be filed in writing to the family court who holds jurisdiction over the place of residence of the person of whom the appointment guardianship is being requested.
When Will the Court Appoint a Guardian for an Adult?
Section 33a of the law states that when they rule to appoint a guardian over an adult, the court shall take the following issues into consideration:
- Will that person’s rights/interests/needs be violated if a guardian is not appointed?
- Is there no less constrictive way to guard the rights and independence of the person except for appointing a guardian?
Who Can Be Appointed as a Guardian?
Section 34 of the law describes the parties that are able to be appointed as guardians by the court:
- Individual
- Corporation
- The Administrator General
The court will request the authorization of the person before appointing him a guardian, and this is in accordance with Section 37 of the law which states:
No guardian will be appointed except for the person who expresses his consent to the court.
In Which Situations Will a Guardian be Appointed?
The court that appoints a guardian will specify which matters the guardian will take care of:
- Medical matters
- Personal matters
- Matters regarding property
- Certain matter or matters that will be determined by the court
The court is authorized to appoint several guardians and divide the various functions between them either conjointly or separately (Section 45 of the law).
Preparing a “Enduring Power of Attorney”, “Preliminary Guidelines of Guardianship”, “Expression of Will”
Section 36 of the law states:
Before appointing a guardian the court will hear the opinion of the person if he is capable of understanding and ascertaining the matter.
We can see that the court considers the person’s opinion before appointing him a guardian. Nonetheless, the court will take into account and give weight to the person’s wishes in light of his physical/mental state, as that person may not necessarily be able to make an informed decision about his future.
In 2017 Amendment 18 was added to the law. This amendment allows a person to appoint himself, before it is too late, a power of attorney who will be able to make decisions on his behalf in the event that he will be unable to do so himself. These various matters can be determined with the following documents:
It is highly recommended for a person to use the options above in order to determine who will be appointed as his power of attorney so as not to reach the situation where the court decides who will be appointed as his guardian.
In addition, the person serving as a guardian may determine who will replace him in the event that he loses his ability to serve as guardian through the “Expression of Will” document.
Interested in Preparing an Enduring Power of Attorney, Preliminary Guidelines of Guardianship, or Expression of Will document? Our Offices is at Your Service
At our law office you will encounter lawyers who are experts in family law and who are authorized by the Public Trustee to prepare Enduring Power of Attorney/Guidelines of Guardianship/Expression of Will documents. Our lawyers will take care of your requests and accompany you throughout the entire process.
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