Translation Notice — This is an English translation of a Hebrew law and may contain inaccuracies. In any dispute or legal matter, the original Hebrew text as published in Reshumot (ספר החוקים) is the sole authoritative and legally binding version.

Law

Legal Capacity and Guardianship Law, 5722-1962

חוק הכשרות המשפטית והאפוטרופסות

Chapter III1: Principles and Methods of Action of a Guardian

Obligations of the Guardian

67d.

[Amendment: 2016]

(a)A guardian is obligated to act with diligence, skill, dedication, and without negligence, and to conduct themselves in good faith for the preservation of the interests of the person under their guardianship and not for the benefit of their own interests.

(b)A professional who has been appointed as a guardian in order to exercise their professional skills shall act with dedication and professionalism as a professional would act toward their client.

(c)A guardian shall not receive any benefit from a third party in exchange for the exercise of their powers and the performance of their duties, and, subject to the provisions of Section 48, shall not find themselves in a situation of conflict of interest.

Methods of Action of a Guardian Appointed for an Adult

67e.

[Amendment: 5776]

(a)In fulfilling his duties and exercising his powers, a guardian appointed for an adult shall act in accordance with the following principles:

(1)Preserving the dignity of the person and acting in a manner that restricts his rights and liberty to the least possible extent;

(2)Preserving, as far as possible, the privacy of the person;

(3)Acting in a manner that enables the person to realize his abilities and to maintain the greatest possible degree of independence, in accordance with his abilities.

(b)Upon his appointment, the guardian shall explain to the person, in plain language and in accordance with his capacity for understanding, what his duties and powers as guardian are, and if the person is a person with a disability — using any assistive aids at his disposal or by any other means reasonably possible in the circumstances.

(c)The guardian shall provide the person with information in his possession regarding the person's personal and financial affairs and information concerning the guardian's handling of the person's affairs, in a language intelligible to the person and in accordance with his capacity for understanding, and shall assist the person in accessing other information pertaining to his affairs or required for the purpose of making decisions on matters concerning him.

(d)The guardian shall assist and encourage the person to make decisions independently on matters concerning him, to the extent that the person is capable of doing so.

(e)The guardian shall act in a manner that enables the person to preserve his cultural and religious values, and shall also assist him in participating in community life, including social, cultural, rehabilitative and occupational activities.

(f)The guardian shall act in a manner that enables the person to maintain relationships with family members and friends.

(g)The guardian shall, as necessary, consult with professional parties and with the person's close family members and friends, and shall seek their assistance in advancing the person's affairs, all while preserving the person's privacy.

(h)A guardian, including a guardian appointed for a person whose condition and capacity for understanding vary from time to time or from matter to matter, shall act in fulfilling his duties with due regard to changes in the person's condition or understanding, including with respect to hearing the person's opinion, consulting with him, taking his wishes into account, and encouraging him to make decisions and to manage matters concerning him independently during such times or in such matters as he is capable of doing so.

Methods of Decision-Making Concerning a Person for Whom a Guardian Has Been Appointed

67f.

[Amendment: 5776, 5784]

(a)The guardian shall hear the opinion of the person for whom he is guardian, shall involve that person in every matter and decision concerning him, and shall consult with him, if it is possible to ascertain his opinion; to that end, the guardian shall provide the person with the information required by him, including the nature of the matter that is the subject of the decision or action, the possible alternatives, the advantages and disadvantages of each choice, and the guardian's recommendation, if any, and the reasons underlying it; for the purposes of this section, "it is possible to ascertain his opinion" and "capable of understanding the matter" — including after he has been provided with information in the manner referred to in subsection (c).

(b)In making decisions on matters within his authority, a guardian shall act as set out below:

(1)If the person for whom he is guardian has given advance directives as referred to in Section 35a on the same matter — in accordance with those advance directives, subject to the provisions of Division F of Chapter II1;

(2)If the person has not given advance directives — in accordance with the person's wishes if he is capable of understanding the matter and the significance of the decision, and if the person's wishes cannot be ascertained — in accordance with his wishes as expressed at a time when he was capable of understanding the matter, or as may be inferred from his past conduct or from his worldview and lifestyle as they existed in the past, all unless the guardian considers that the decision will cause substantial harm to the person;

(3)If the person is incapable of understanding the matter and the significance of the decision and his previous wishes cannot be ascertained as referred to in paragraph (2) — in accordance with his best interests, with due regard to his current wishes;

(4)In a material personal matter or a material medical matter, if the person objects at the time of the act to the action, the guardian shall attempt to reach an agreement with him, and if no agreement has been reached — the guardian shall apply to the Ethics Committee as defined in the Patient Rights Law, or to the court for directions, as the case may be.

(c)Information and explanations that the guardian is required to provide to the person pursuant to this section and pursuant to Section 67h shall be provided to him in plain language in accordance with his capacity for understanding, and if the person is a person with a disability — using any assistive aids at his disposal or by any other means reasonably possible in the circumstances; nothing in the provisions of this subsection shall derogate from the provisions regarding accessibility accommodations under the Equal Rights for Persons with Disabilities Law, as required of a person providing a public service within the meaning of that Law.

Consent to Restrictive Actions or Use of Force

67g.

[Amendment: 2016]

A guardian shall not give consent on behalf of the person under their guardianship to an action that restricts the person's freedom of movement or that authorizes a person to use reasonable force against them and for which a judicial order is required, nor shall the guardian give their consent to the judicial order, unless the person has given their consent thereto after the guardian has explained the significance of the matter to them.

Record Keeping

67h.

[Amendment: 2016]

(a)A guardian shall maintain documentation with respect to material decisions made by them on behalf of the person under their guardianship and with respect to actions taken by them in that person's affairs.

(b)The Minister may prescribe provisions with respect to this section, including provisions regarding the periods for retention of documentation in accordance with the categories of documents to be prescribed.

Need to cite this law in a foreign court?

Eli Shimony Israeli Attorneys-at-Law provides certified Expert Legal Opinions on Israeli law within 24–48 hours, accepted by courts worldwide.

Chapter IV: Miscellaneous Provisions

General Authority for Protective Measures

68.

[Amendment: 1970, 1983, 2016]

(a)The court may, at any time, upon the application of the Attorney General or their representative, or upon the application of an interested party, or even on its own initiative, take temporary or permanent measures as it deems fit to protect the interests of a minor and of a person for whom a guardian has been appointed, whether by appointing a temporary guardian or a guardian ad litem, or in any other manner; and the court may likewise do so if the minor or the person for whom a guardian has been appointed has approached it directly.

(b)Where the application is to order the performance of a surgical operation or the taking of other medical measures, the court shall not so order unless it is satisfied, on the basis of a medical opinion, that the said measures are necessary for the protection of the physical or mental well-being of the minor or the person for whom a guardian has been appointed, after having weighed the person's wishes, the importance of the treatment, its necessity, its urgency, the possible impact on the person's way of life, and the prospects for improvement in the person's quality of life.

(c)In this Chapter, except in Section 80, "a person for whom a guardian has been appointed" includes a person for whom the court is entitled to appoint a guardian, even if it has not yet been established whether the conditions for appointment have been met.

Representation in Medical Matters

68a.

[Amendment: 2016]

The court shall consider appointing a lawyer in accordance with the provisions of the Legal Aid Law, 5732–1972, for a person who is not represented by a lawyer, where one of the following applies:

(1)An application has been submitted to the court by a guardian for instructions pursuant to Section 67f(b)(4), regarding an action in a material medical matter to which the person who is their ward objects or objected in the period immediately preceding;

(2)An application has been submitted to the court for the appointment of a guardian for the purpose of material medical treatment, and the person for whom it is sought to appoint a guardian objects or objected in the period immediately preceding to the appointment or to the treatment, and has no relative who is in contact with them.

Standing of the Attorney General

69.

[Amendment: 1970, 2016]

The Attorney General or their representative may, if they consider that the best interests of a minor, a person declared legally incompetent, or a person for whom a guardian has been appointed, or the public interest, so requires, initiate any legal proceeding, including an appeal, under this Law, and also to appear and plead in any such proceeding.

Standing of a Social Worker

70.

[Amendment: 1970, 2011, 2016]

A social worker appointed for the purposes of the Welfare Law (Procedure in Matters of Minors, Mentally Ill Persons and Absentees), 5715–1955, may, in a matter under this Law that is not pending before the court and if they see a need to do so for the protection of a minor, a person declared legally incompetent, or a person for whom a guardian has been appointed, investigate any person whom they believe to have knowledge pertaining to that person, and the person being investigated is obliged to answer the social worker with honest and complete answers, unless the answer might incriminate them; and the social worker may, if authorized to do so by a court order, enter any place where such a person is or may be found.

Preservation of Laws

71.

The provisions of Sections 69 and 70 do not derogate from the provisions of the Welfare Law (Procedure in Matters of Minors, Mentally Ill Persons and Absentees), 5715–1955.

Standing of Relatives

72.

[Amendment: 2016]

In any matter under this Law, the court may, even on its own initiative, hear the views of the relatives of the minor, the person declared legally incompetent, or the person for whom a guardian has been appointed, to the extent the court finds it desirable to hear them.

73.

[Amendment: 1995]

[(Repealed).]

Modification of Decisions

74.

The court may modify or revoke its decisions under this Law if circumstances have changed or additional facts have come to light after it rendered its decision.

Approval of Actions by the General Guardian or by the Court and Approval of Remuneration

74a.

[Amendment: 5784-2]

(a)A request for approval pursuant to Sections 20, 23(a) in fine, 32f(d) and 47(a) or (b), or a request for approval of a guardian's remuneration submitted to the General Guardian pursuant to Section 56 (in this Section – a request), shall be submitted to the General Guardian.

(b)The request shall be submitted in the manner to be published by the General Guardian on the website of the Ministry of Justice and in accordance with the procedure to be published as aforesaid, and shall set out the position of the appointer, as defined in Section 32a (in this Section – the appointer), the position of the person for whom a guardian has been appointed, or the position of a minor who has reached the age of 16 years (in this Section – the minor), if a guardian has been appointed for such minor, as the case may be; in the request the applicant shall declare that a position as aforesaid was received after acting in accordance with the provisions of Section 32i or 67f, as the case may be.

(c)

(1)The General Guardian shall examine the request, and if the General Guardian sees fit may approve it or approve it subject to conditions to which the applicant has agreed; if the General Guardian does not see fit to approve such a request, the General Guardian shall transfer it to the court in accordance with the provisions of subsection (e).

(2)In this subsection and in subsections (d) through (f), "the General Guardian" means the General Guardian or a person authorized by the General Guardian from among the State employees under the General Guardian's supervision, and notice of such authorization shall be published in the Official Gazette.

(d)Notwithstanding the provisions of subsection (c), the General Guardian shall not entertain a request and shall transfer it to the court in accordance with the provisions of subsection (e), if any of the following conditions is met:

(1)The request states that the appointer, the person for whom a guardian has been appointed, or the minor, as the case may be, objects to the request;

(2)The request is contrary to advance directives to an attorney-in-fact as defined in Section 32a, or to advance directives for the purpose of appointing a guardian as defined in Section 35a, which have been deposited with the General Guardian, as the case may be;

(3)The request concerns an apartment or a farming, industrial, craft, or commercial business unit, and in each such case the apartment or unit in question is solely owned by the minor on the eve of submission of the request, unless the minor has declared in writing that the minor consents to the request;

(4)Other circumstances have arisen, which shall be recorded, by reason of which the General Guardian has seen fit not to entertain the request.

(e)Where the General Guardian has not approved a request as referred to in subsection (c) or has not entertained a request as referred to in subsection (d), the General Guardian shall notify the applicant accordingly and shall indicate in the notice that the applicant may have the request transferred to the court if the applicant so wishes; the transfer of the request to the court shall be accompanied by the General Guardian's position on the request and all documents submitted in connection therewith, and it shall be deemed a claim pursuant to Section 1 of the Family Court Law, 5755–1995.

(f)The General Guardian's approval pursuant to subsection (c), or notice of the transfer of the request to the court as referred to in subsection (c) or (d), shall be delivered to the applicant within 60 days from the date on which the request was submitted or from the date on which all documents and information required for the purpose of granting the approval were submitted to the General Guardian, whichever is later; if approval or notice as aforesaid has not been given within the said period, the applicant may apply to the court for approval, and such application shall be deemed a claim pursuant to Section 1 of the Family Court Law, 5755–1995.

(g)Nothing in the provisions of this Section shall derogate from the provisions of Sections 32i(e) and 67f(b)(4).

(h)The Minister, with the approval of the Constitution, Law and Justice Committee of the Knesset, may prescribe provisions regarding fees to be paid for the submission of requests.

(i)Without derogating from the provisions of Section 79, where a religious court is competent by law to adjudicate, the Sections enumerated in subsection (a) shall be deemed as if the approval authority prescribed therein is vested in the religious court.

75.

[Amendment: 1983, 1995]

[(Repealed).]

International Jurisdiction

76.

[Amendment: 2016]

The courts in Israel are competent –

(1)to declare a person legally incompetent or to revoke a declaration of legal incompetence if the person's domicile or place of residence is in Israel;

(2)to act pursuant to [Chapters Two through Three of this Law] in any case where the need to do so arose in Israel.

Private International Law

77.

[Amendment: 5776]

(a)Matters governed by this Law shall be subject to the law of the place of domicile of the minor, the legally incompetent person, or the person for whom a guardian has been appointed; however –

(1)A legal act performed in Israel by a person whose legal capacity is limited or has been removed, being an act of the kind that persons in such circumstances ordinarily perform, as well as a legal act performed in Israel between a person whose legal capacity is limited or has been removed and a person who did not know and was not required to know of that fact, shall be valid unless it caused substantial harm to that person or to that person's property;

(2)With respect to an act performed in Israel by the parents of a minor or by a guardian, no claim may be made against a third party that the authority of the parents or of the guardian was more limited than the authority vested in them under this Law, unless that party knew or was required to know of such limitation.

(b)The question of the validity and scope of a continuing power of attorney pursuant to Chapter Two1, or of advance directives to an attorney-in-fact pursuant to that Chapter, shall be governed by the law of the place of domicile of the appointer on the date of execution of the continuing power of attorney; these provisions shall not apply with respect to the amendment, limitation, revocation, or lapse of a continuing power of attorney.

The Competent Court

78.

[Amendment: 1995]

The powers vested under this Law in the court shall be those of the Family Court, subject to the provisions of Section 79.

Preservation of Laws and Jurisdiction

79.

This Law does not come to affect the laws of marriage and divorce; it does not come to add to or to derogate from the jurisdictional powers of religious tribunals; and where a religious tribunal is competent by law to adjudicate, every provision in this Law – except Section 75 – that refers to a court shall be deemed to refer to a religious tribunal.

Definitions

80.

[Amendment: 1970, 2016]

In this Law –

"ward" – [(deleted);]

"representative" of a person – their parents or appointed guardian, all in accordance with the provisions of Chapters Two and Three;

"relative" – spouse, father, mother, son, daughter, brother, sister, grandfather, grandmother, grandson, granddaughter;

"domicile" of a person – the place where the center of their life is located; a minor, a person declared legally incompetent, and a person for whom a guardian has been appointed, are presumed to have their domicile at the domicile of their representative, so long as it has not been proven that the center of their life is located elsewhere;

"Patient's Rights Law" – the Patient's Rights Law, 5756–1996;

"Equal Rights for Persons with Disabilities Law" – the Equal Rights for Persons with Disabilities Law, 5758–1998;

"best interests" of a person – the totality of the rights, interests, and needs of the person;

"continuing power of attorney" – as its meaning in Section 32b(a);

"residence" – as defined in the Supervision of Homes Law, 5725–1965, excluding a place that is not used for residential purposes;

"the Minister" – the Minister of Justice.

Application of Provisions to a Foetus

80a.

[Amendment: 2016]

The provisions applicable under this Law to a guardian of a person and to a person for whom a guardian has been appointed or for whom the court is entitled to appoint a guardian shall apply, with the necessary modifications, also to a guardian of a foetus and to a foetus for whom a guardian has been appointed or for whom the court is entitled to appoint a guardian.

Interpretation of the Term "Ward" in Legislation

80b.

[Amendment: 2016]

Where a provision in legislation pertains to a ward within the meaning of this Law, as worded immediately prior to the publication of the Legal Capacity and Guardianship (Amendment No. 18) Law, 5776–2016, the meaning of the term "ward" shall be a person for whom the court has appointed a guardian under Section 33, or a person for whom the court is entitled to appoint such a guardian, even if it has not yet been established whether the conditions for appointment have been met, all as the case may be.

Updating of Amounts

80c.

[Amendment: 2016]

(a)The amounts prescribed in this Law shall be updated on the 1st of January of each year (in this Section – the update date), in accordance with the rate of change in the index known on the update date as compared with the index known on the 1st of January of the preceding year.

(b)The Minister shall publish a notice in the Official Gazette of the updated amounts.

Transitional Provisions

81.

A person who was declared legally incompetent prior to the commencement of this Law shall be regarded, from the commencement of this Law, as if they had been declared legally incompetent under this Law; a person who was appointed as guardian by a competent court or religious tribunal prior to the commencement of this Law shall be regarded, from the commencement of this Law, as if they had been appointed under this Law.

Repeals

82.

The following are repealed –

(1)Sections 941 to 947, 957 to 997 of the Mejelle;

(2)[The text was incorporated in the Ottoman Land Law;]

(3)[The text was incorporated in the Ottoman Commercial Law;]

(4)[The text was incorporated in the Ottoman Law on Associations;]

(5)[The text was incorporated in the Partnership Ordinance.]

Implementation and Regulations

83.

[Amendment: 5776]

(a)The Minister of Justice is charged with the implementation of this Law and may make Regulations in all matters relating to its implementation.

(b)The Minister, with the consent of the Minister of Health and with the approval of the Constitution, Law and Justice Committee of the Knesset, may –

(1)Prescribe rules for the provision of expert opinions for the purpose of determining whether a person has capacity within the meaning of Sections 32m, 32n, 32o, and 32s, or for the purpose of determining whether a person is capable or incapable of understanding a matter, with respect to that person's ability to express their views and wishes and with respect to that person's ability to make decisions or manage their affairs in connection with proceedings under this Law;

(2)Prescribe categories of experts in addition to physicians who shall be qualified to provide expert opinions on the matters referred to in paragraph (1), in whole or in part, including rules regarding training, expertise, and experience;

(3)Prescribe rules regarding the maintenance of a list of experts who shall be entitled to provide expert opinions on the matters referred to in paragraph (1);

(4)Prescribe rules relating to professionals as defined in Section 32o, including rules regarding training, expertise, and experience.

Commencement

84.

This Law shall come into force three months after its adoption by the Knesset.

Need to cite this law in a foreign court?

Eli Shimony Israeli Attorneys-at-Law provides certified Expert Legal Opinions on Israeli law within 24–48 hours, accepted by courts worldwide.

← Prev 1 2 3 4 5 6 Next →

Page 5 of 6