Legal Capacity and Guardianship Law, 5722-1962

Every person is capable of having rights and obligations from the completion of birth until death.

Every person is capable of performing legal acts, unless such capacity has been removed or restricted by law or by a judgment of a court.

A person who has not yet attained the age of 18 years is a minor; a person who has attained the age of 18 years is a major.

A legal act of a minor requires the consent of his representative; consent may be given in advance or retrospectively in respect of a specific act or a specific class of acts. The representative of a minor may revoke his consent to an act as long as the act has not yet been performed.

A legal act of a minor performed without the consent of his representative is voidable—

A legal act of a minor of the kind that minors of his age customarily perform, and likewise a legal act between a minor and a person who did not know and was not required to know that he was a minor, is not voidable as provided in section 5, even though it was performed without the consent of his representative, unless it involved material harm to the minor or to his property.

A legal act of a minor that consists of the acquisition of an asset on credit or under a hire-purchase arrangement, the lease of an asset or the receipt of a service on credit, has no effect, notwithstanding the provisions of sections 5 and 6, as long as the consent of his representative has not been given thereto; for the purposes of this section, "credit" includes payment by instalments.

A legal act of a minor requires approval if it would have required approval had it been performed by his representative; and the act has no effect as long as it has not received such approval; in this section, "approval" means the approval of the court, and in respect of an act under sections 20, 23(a) in fine or 47 — approval under the provisions of section 74a.

A person who, by reason of mental illness or mental deficiency, is incapable of attending to his affairs, may be declared by the court, upon application by his spouse or relative or upon application by the Attorney General or his representative, and after the court has heard the person or his representative, to be legally incompetent.

The provisions of sections 4 to 7 shall apply, with the necessary modifications, to a legal act of a person who has been declared legally incompetent.

Where a person has been declared legally incompetent, the court may, upon his application, upon application by his spouse or relative, or upon application by the Attorney General or his representative, and after the court has heard the legally incompetent person, revoke the declaration of incompetency if it finds that the declaration was not justified or that the conditions for the declaration have ceased to exist.

Wherever reference is made, in any form of expression, to a person of a certain age, his age shall be reckoned from the beginning of the day on which he was born, this being so in the absence of express or implied contrary intention; a day commences with the setting of the sun of the preceding day and ends with the setting of the sun of that day.

Where the year of a person's birth is known but the day of his birth is not known, he is presumed to have been born on the first of Nisan of that year; where the month of a person's birth is known but the day of his birth is not known, he is presumed to have been born on the fifteenth day of that month.

The provisions of this Chapter do not apply to a person's capacity to perform acts that determine or alter his personal status, and do not derogate from any law that prescribes, in respect of a particular matter, an age of capacity or the consequences of removal or restriction of capacity, or that prescribes the consequences of a declaration of death.

The parents are the natural guardians of their minor children.

The guardianship of parents includes the duty and the right to attend to the needs of the minor, including his education, studies, vocational and occupational training and work, as well as the custody, management and development of his property; and attached thereto is the authority to have physical custody of the minor and to determine his place of residence, and the competence to represent him.

The minor is required, while honouring his father and mother, to obey his parents in every matter that falls within their guardianship.

In their guardianship of the minor, the parents are required to act in the best interests of the minor in the manner that devoted parents would act in the circumstances of the matter.

If the parents have not reached agreement between themselves on a matter concerning the minor's property, either of them may apply to the court and it shall decide the matter. If the parents have not reached agreement between themselves on another matter within their guardianship, they may apply to the court jointly, and the court, if it has not succeeded in bringing them to agreement and if it sees fit to decide the matter, shall decide it itself or shall entrust the decision to such person as it sees fit.

An act of parents requiring approval under section 20(5) shall be valid even in the absence of such approval if it was performed vis-à-vis a person who did not know and was not required to know that it required approval.

The parents shall not bear liability for damage caused by them to the minor in the course of performing their guardianship duties, unless they acted in bad faith or did not intend the minor's welfare; they shall not bear liability for damage caused by them to the minor's property in the course of performing their guardianship duties, if they acted in good faith and intended the minor's welfare.

Where the parents of a minor are living separately — whether their marriage has been annulled, dissolved or terminated, whether it still subsists, or whether they were not married — they may agree between themselves as to which of them shall have guardianship of the minor, in whole or in part, which of them shall have custody of the minor, and what the rights of the parent not having custody of the minor shall be to have contact with the minor; such an agreement requires the approval of the court and the court shall approve it after being satisfied that the agreement is in the best interests of the minor, and once approved, its status — for every purpose other than appeal — shall be the same as a decision of the court.

If the parents have not reached an agreement as referred to in section 24, or if they have reached an agreement but the agreement has not been performed, the court may determine the matters referred to in section 24 as it sees fit in the best interests of the minor, provided that children up to the age of 6 shall be with their mother unless there are special reasons to order otherwise.

Where a parent is unable to fulfil his duties under this Chapter with regard to the property of his minor child, or neglects those duties, or where the minor's property is endangered by him, the court may order that the provisions applicable to guardianship under sections 44, 50 to 54, 58 and 59, in whole or in part, shall apply to him with the necessary modifications.

Where a parent of a minor is a person against whom a Magistrate's Court has taken action as described in section 3(3) or (4) of the Youth (Care and Supervision) Law, 5720-1960, the court may deprive him of his guardianship over the minor or restrict it; the same applies if it has been proved to the satisfaction of the court that the conditions under which a Magistrate's Court would have taken such action against the parent have been fulfilled.

"Penal Law" means the Penal Law, 5737-1977;

"rape" means an offence under section 345 or 351(a) of the Penal Law;

"aggravated assault" means an offence under section 329 of the Penal Law;

"sodomy" — (Repealed)

"attempted murder" means an offence under section 305 of the Penal Law;

"murder" means an offence under section 300(a) or 301a of the Penal Law.

The provisions of section 16a of the Patient's Rights Law, 5756-1996, shall apply with the necessary modifications also to the following treatments provided to a minor:

Upon the death of one parent, guardianship over the minor shall vest in the surviving parent; however, the court may, in addition to that parent, appoint for the minor a guardian generally or for matters to be determined by the court; the same applies if one parent has been declared legally incompetent, or is unable to fulfil his duties under this Chapter, or where the court has determined, in a reasoned decision, that the parent has refrained, without reasonable cause, from fulfilling his said duties, in whole or in part, or where guardianship of the minor has been deprived from him by the court, and likewise if one parent is unknown, or was not married to the other parent and did not acknowledge the minor as his child.

Upon the death of a parent of a minor, the court may, if it sees fit that it is in the best interests of the minor, decide upon the application of the deceased's parents regarding the contact between them and the minor.

Where the guardianship of one parent has been restricted, the court may, in addition to the parents, appoint for the minor a guardian for matters to be determined.

The court shall not appoint a guardian in addition to a parent unless it has seen special reason to do so in the best interests of the minor and after the parent has been given an opportunity to present his arguments; where a guardian has been appointed as aforesaid, the provisions of sections 45 and 46 shall apply with the necessary modifications.

Where a person has conveyed an asset to a minor by gift or by will and stipulated that the management of the asset shall be in the hands of one of the minor's parents alone or in the hands of a person other than the minor's parents, his condition shall be upheld notwithstanding anything provided in this Chapter; where a person other than the parents has been designated to manage such an asset, the provisions of Chapter III, including section 64, shall apply to him.

The provisions of this Chapter shall not derogate from the obligation of parents to pay maintenance to their minor children under the provisions of the Family Law Amendment (Maintenance) Law, 5719-1959.