Guardianship Attorney Helping Individuals and Families Plan for Their Futures
Everyone wants to imagine that they will remain healthy and mentally sharp for the entirety of their lives. Unfortunately, for many people, there will come a point where their thinking is not so clear, and they will no longer be capable of reliably making good decisions. While many people think this type of incapacitation will only occur during old age, the situation can also happen earlier in life due to injury, illness, mental disability, or other circumstances.
It is vital to consider your options for legally appointing someone to act on your behalf if you become unable to tend to your own affairs. No one wants to leave these critical decisions up to the Family Court. Creating a solid plan for guardianship of yourself or a loved one before it becomes necessary allows you both to ensure that your wishes are documented and will be followed. Hait Family Law can help you explore guardianship and other alternative solutions to build a carefully crafted plan that meets the needs of you and your family. Call today to schedule a free consultation to discuss your legal options: (077) 200 8161.
What is a Legal Guardian?
When a person cannot manage their own affairs, they need to be legally protected from potential fraud or harm perpetrated by others who would take advantage of their situation and from poor choices they might make on their own. A legal guardian is someone designated by the court to make decisions about important aspects of another person’s life with the intent of safeguarding their well-being. They are obligated to look out for the individual’s best interests and can be held liable if they do not uphold the duties of their position.
The legal guardian may be a person, a group of people (such as several family members), or a corporation. “Ward” was the old legal term for a person who had a guardian, but in an effort to maintain the humanity of the individual, Israeli law now refers to them as “a person for whom a guardian was appointed.” Often, a single guardian is appointed for all the individual’s affairs, but when required, it can be broken down into three distinct areas:
- Guardianship of finances and the estate
- Guardianship of personal affairs
- Guardianship of medical decisions
When Might a Legal Guardian Be Required?
In general, if a person has been incapacitated in some manner or lacks the mental acuity to make decisions, they will likely need a guardian appointed to handle their daily affairs. A guardianship can be long-term or short-term. For example, if someone gets injured and cannot speak to make their wishes known, they may need a guardian who can communicate with doctors and make medical and financial choices for them until they can heal. If the circumstances of the person for whom a guardian has been appointed change and they regain the capacity to handle their affairs, then the guardianship will be ended. Three common situations may lead to the appointment of a guardian.
When an Individual Becomes Mentally Unfit Due to Old Age, Illness, or Accident
If a person’s mental faculties have reached the point that they do not have the capacity to make important decisions for themselves, they may need a guardian to handle some or all of their affairs. Alzheimer’s is one condition that can quickly result in the need for a guardian. Other issues that can impact mental fitness include dementia, strokes, and traumatic brain injuries.
When an Individual Has Special Needs
Formerly, under Israeli law, it was compulsory for the Family Court to appoint a guardian for any individual with developmental or intellectual disabilities who could not care for their own affairs. While the court now considers other alternatives first, they may still determine that guardianship provides the best choice for stability and protection for the individual.
When the Parents of a Minor Child Pass Away
Minor children do not have the legal capacity to make many of their own decisions, so this role typically falls to their natural guardians, usually their biological parents. However, if these guardians pass away, someone else must be appointed to the position of guardian until the child reaches the age of maturity. In such cases, family members are usually given preference by the court, but if no family members are available, an organization or adoptive family could be granted the responsibility.
How is a Legal Guardian Appointed?
If your loved one requires a guardian, you may submit a request to the family court to have a guardian appointed by filling out a form. You should include documentation of why guardianship is necessary, such as medical records or psychiatric reports. You will also require an affidavit authenticated by an attorney. The court will examine the documentation and may call a hearing to learn more about the situation and decide whether guardianship is appropriate.
If the court feels it is in the incapacitated person’s best interests and there are no suitable alternatives, then a guardian will be named. The court will carefully specify the role of the guardian, the length of their appointment, and any restrictions to their powers so their position is clear. If multiple family members cannot agree on who should be the guardian, the court may appoint a third party to avoid a conflict of interest.
The court may also appoint a guardian in accordance with the previously recorded wishes of the incapacitated person. Consulting a lawyer to create this type of document can save your family a lot of future stress and hassle. However, in most cases, it would be even more beneficial to set up a continuing power of attorney instead because it allows you to plan for a broader range of issues and ensure that your wishes are carried out.
Can You Be Put Under Guardianship Against Your Will?
It is rare, but it can happen. Every individual has the right to autonomy and independence to make their own legal decisions. However, the court does have the authority to limit an individual’s legal capacity if the person is proven legally incompetent. This is not a step that the court takes lightly, and they will look for other options, but if a person is shown to be incapacitated through sufficient proof, then the court may choose to appoint a guardian even if the person is against it. You can prevent this situation by creating a proactive plan with a knowledgeable family law attorney while your mental abilities are still sharp.
What Are the Alternatives to Legal Guardianship?
Guardianship is a highly restrictive legal solution, as it takes away one person’s fundamental rights to make critical decisions about their life and gives them to another. As such, the court prefers to use it sparingly. We strongly recommend that clients and their families look into alternatives and begin their planning process for their golden years long before they anticipate losing their ability to handle their affairs independently. A solid plan can provide you and your loved ones peace of mind and prevent costly and emotionally harmful legal battles down the road.
As you age, your cognitive abilities are likely to decline. You can designate a trusted Decision Support Advocate (DSA) to help you understand your options and make choices if you are finding it difficult to do these things on your own. This person ought to be someone close to you who deeply understands your decision-making process and values, often a spouse or a child. Unlike a guardian, they cannot make decisions for you on their own. Instead, they provide support and guidance to help you make your own choices. Supported decision-making is also a great choice for individuals with intellectual disabilities who can mostly live independently but could use occasional assistance with financial decisions or other choices.
Continuing Power of Attorney
By drafting a continuing power of attorney, you can make a detailed plan for your future that will remain in effect even if you become mentally incapacitated. Within this document, you can name who you wish to handle your affairs, your requests for how they should be carried out, and any preliminary instructions for your designated representative. There are numerous other options for the information that your continuing power of attorney can contain, so it is key to consult with a skilled family lawyer who can evaluate your situation and advise you on creating the best plan for your unique needs.
As noted, full guardianship is a drastic step and may not be appropriate in every case. There could be other creative ways to ensure that your loved one is protected if they are unable to make solid legal decisions. For example, you could request guardianship with limited authority. This type of guardian only has control over a tiny aspect of the individual’s life, a strict time limit on their guardianship, or another restriction on their powers.
Another solution is placing spending limits on the individual’s bank accounts or credit cards if they struggle with money choices. That way, the financial risks of any unwise decisions are low, and they can maintain their autonomy. If you have minor children, your will or other estate planning documents can be used to designate a guardian for them in the event that you pass away.
What Are Some Common Guardianship Issues Anglo-Jewish Individuals May Encounter?
Estate planning can be challenging for Anglo-Jewish olim. Navigating the laws of a new country can feel overwhelming. Many people procrastinate on creating new legal documents after they make Aliyah, but this can cause problems for their loved ones later. Some of the issues that Hait Family Law can help you overcome include the following:
- Unfamiliarity with Hebrew: Many Anglo-Jews speak English exclusively, but much of the Israeli legal system uses Hebrew for official documents and proceedings. Your lawyer will ensure your documents are created correctly and you understand the laws surrounding your guardianship proceedings.
- Only having estate planning documents from the US: Many people do not realize that Israeli law will not recognize your living will, power of attorney, or other estate planning documents from the US. To protect your property, health, and family, you must create new, valid documents after making Aliyah.
- Not knowing where to start: If you are looking at guardianship proceedings, your family is likely going through a challenging emotional time. It can be incredibly hard to contemplate all the legal steps you need to take on top of everything else you are juggling. Attorney Jay Hait went through these issues with his own parents after they made aliyah, so he has deep compassion for families who are struggling and strives to make their experience as simple as possible.
If you need to seek guardianship of a loved one or are ready to set up a plan for who will handle your affairs in the future, contact our law firm today at (077) 200 8161 or visit our Tel Aviv office to schedule your no-cost case evaluation.