Guardianship

The Process of Appointing a Guardian

The appointment of a guardian for a person is usually carried out in cases where no other solution is available, such as a power of attorney or an enduring power of attorney. Sometimes, appointing a guardian is the only way to protect a person who requires such protection for medical or functional reasons, because that person is unable to manage their own affairs and may cause harm to themselves and/or their property.

The process involves submitting an application to the Family Court and the intervention of the Ministry of Welfare as the responding authority.

Types of Guardianship Orders

•      General Appointment - The guardian is appointed for all of the person’s affairs, both personal and financial.

•      Appointment for Financial Matters - Only for property and financial affairs.

•      Guardian for Personal Matters - (formerly called “appointment for the body”) - All of the person’s personal affairs, including medical issues, employment, housing, social life, leisure activities, etc. Does not include property matters.

•      Appointment for a Specific Matter - For a particular issue, such as (but not limited to) making a financial decision or carrying out a medical procedure.

Role of the Guardian

The guardian is obligated to act with sensitivity, dedication, and loyalty toward the person. They must always keep in mind the person’s wishes, best interests, and treat them with dignity. The guardian must provide and communicate information relevant to the person in a manner suited to their abilities and in language they can understand.

The guardian must make decisions and carry out actions, as much as possible, in consultation with and involving the person, according to their condition and subject to their wishes as prioritized by law: first, check if the person has made advance directives and act accordingly; alternatively, act according to their current wishes; if not possible, trace their past wishes; and as a last resort, in the absence of any ability to determine the above, act according to their best interests or pursuant to a court order.

The Office of the Administrator General maintains a supervisory system over guardianship appointments to ensure guardians perform their duties properly, in accordance with the law and guidelines, with honesty, fairness, and good faith.

Main Duties of a Guardian for Personal Matters

•      Conduct regular visits to the residence of the person under guardianship.

•      Act to realize the rights of the person under guardianship.

Main Duties of a Guardian for Financial Matters

•      Make payments and settle debts.

•      The guardian is authorized to regulate the person’s independent management of their bank account, according to their abilities, subject to limitations to protect their funds, reporting to the supervisory department of the regional office of the Administrator General, and subject to the bank’s discretion.

•      Keep documentation - for monitoring purposes, the guardian must retain and attach receipts and other confirmations for withdrawals from bank accounts and record significant actions taken with the person’s property.

•      Realization of rights - the guardian must act to realize the person’s financial rights with various authorities, ensuring receipt of discounts, credits, and allowances from relevant agencies.

•      Professional assistance - sometimes it is necessary to purchase professional services for the person. The guardian may obtain such services, paid or free, such as legal aid.

•      Insurance and investment of funds - the guardian must ensure the person’s assets are insured, managed, and maintained.

•      Submission of periodic financial reports to the Administrator General - during the guardianship period, the guardian must submit an annual financial report (or as otherwise directed).

•      For review of the annual report, the person must pay a fee (“audit fee”), depending on the classification of the report and the scope of assets, unless exempted.

•      Legal actions requiring court approval include:

•      Transactions involving real estate.

•      Providing guarantees or loans.

•      Any transaction exceeding 100,000 NIS.

•      Investment of funds in ways other than those set out in the investment regulations, or in amounts exceeding 1,000,000 NIS.

•      Withdrawal of funds or significant special actions in a pension fund or provident fund (not including monthly withdrawals).

Termination of Guardianship - When the guardian’s role ends, they must transfer the assets and documents in their possession back to the person. If the person has died, they must transfer them to the heirs, the estate administrator, or another party designated by the court. Additional actions may be required depending on the circumstances leading to the end of guardianship. A final financial report must also be submitted to the Administrator General and the heirs, using the annual financial report form.

Difference Between Guardianship and Enduring Power of Attorney

•      Guardianship is appointed only by the court, whereas an enduring power of attorney is executed through a lawyer.

•      Guardianship is appointed retroactively, when the person is already in a situation requiring appointment, whereas an enduring power of attorney is executed in advance, reflecting the grantor’s will and foresight.

•      Guardianship grants the guardian broad and comprehensive powers to manage the person’s affairs, whereas an enduring power of attorney limits and defines the scope of actions, powers, and matters in which the attorney-in-fact may act.

•      Guardianship requires ongoing reporting to the Administrator General, whereas an enduring power of attorney does not require ongoing reporting.