Decision Supporter
Alternatives to guardianship: a decision support mechanism
There are many situations in which a person, due to age or some kind of disability, has difficulty making decisions and performing actions, guardianship can be a draconian alternative that will harm his dignity. In this situation, a decision supporter can be appointed who will help said individual. With that said, the judgment will remain fully in the hands of the supported.
מאת עו״ד ונוטריון יגאל מור
דיוק בייעוץ המשפטי. מצויינות בליווי המשפטי.
"States that are parties (to the convention) will recognize that people with disabilities have legal status equal to that of others, in all aspects of life"
#. 12 of the Convention on the Rights of Persons with Disabilities
2006 Convention on the Rights of Persons with Disabilities
Decision support - what is it actually?
The institution of guardianship that we all know is important and essential, but it takes away from the protected the freedom to make decisions concerning his life. This, naturally, damages self-confidence and the right to freedom, which is reserved for each of us, to lead our lives according to our will. Therefore, appointing a guardian is the appropriate solution only where that person is no longer able to take care of his affairs and he, therefore, needs a third party who will exercise discretion and make decisions for him.
Therefore, it is not relevant in situations where a person has difficulty making decisions and performing actions, but he is competent enough to do so. For this purpose, in 2015, Amendment 18 to the Legal Training and Guardianship Law was created, under which a person can submit an application to the court requesting to appoint a decision supporter. This is a person whose role is to assist the supported person in the decision-making process and their implementation, but he does not replace his judgment with that of the supported person and the latter retains full control over his life.
The conditions for appointment:
Appointing a decision supporter is a good alternative to appointing a guardian. This solution may be optimal in situations where a person is able to make decisions for himself and is capable of managing his affairs. In other words, this alternative is relevant when the main assistance said individual requires is regarding the accessibility of the information and the implementation of the decisions he makes. And to make it clear, the discretion remains entirely and exclusively in the hands of the supported person. In this sense, nothing changes from before the appointment, since the supported person makes the decisions and is the one who signs off on them. The only difference is in receiving accompaniment and support, in order to better understand the alternatives facing the supported person and assistance in exercising his rights when dealing with third parties: banks, medical institutions, social security, etc.
What are the conditions that must be met in order for the court to appoint a decision supporter and not a guardian?
- Age: The supported person must be an adult, over the age of 18 and permanently residing in Israel. This is different from appointing a guardian, a procedure that is also relevant for minors, for example.
- Absence of another appointment: a preliminary condition is that the supported person has not been appointed a guardian and no lasting power of attorney has been implemented in his case.
- Decision-making: The main condition for the appointment of a decision-supporter, is of course the ability of the supported person to make decisions independently and clearly express his wishes.
- Consent: Unlike the appointment of a guardian, here the consent of the supported person is required for the appointment, since the decision supporter does not replace the judgment of the supported person, but only assists him.
Who can be appointed as a decision supporter?
As the very decision on the appointment of a decision supporter is up to the supported, the choice of the identity of the decision supporter is also up to the supported. He can choose any adult person that he trusts for the position, optimally a person whose relationship and communication with the supported are good so that the supporter can really help him effectively. It must be emphasized that the appointment depends on the fact that there is no clear conflict of interest between the parties, in order to make sure that the supporter of the decisions will not try to promote his personal interests in the framework of the assistance to the supported.
Accurate and specific legal advice.
As the very decision on the appointment of a decision supporter is up to the supported, the choice of the identity of the decision supporter is also up to the supported. He can choose any adult person that he trusts for the position, optimally a person whose relationship and communication with the supported are good so that the supporter can really help him effectively. It must be emphasized that the appointment depends on the fact that there is no clear conflict of interest between the parties, in order to make sure that the supporter of the decisions will not try to promote his personal interests in the framework of the assistance to the supported.
Also, the supporter cannot be someone who serves as a professional guardian or is employed by a guardianship corporation, for obvious reasons. The role of a decision supporter can be performed voluntarily or for a fee and the appointed must undergo professional training. In a situation where a decision suporter was appointed without any training, the validity of the appointment will be for three months only and can be extended after presenting a confirmation of the completion of the training. And what happens when the supported requests to stop the support relationship? All he has to do is send a message to the supporter that he is no longer interested in his services.
“States that are parties (to the Convention) will take appropriate measures to ensure that people with disabilities have access to the support they may need, in order to exercise their legal capacity”
S. 12 (3) of the Convention on the Rights of Persons with Disabilities
