The discrepancy between protection of the ward's rights and assets and the duty of the ward himself to ensure the well-being of the members of his household – The law firm of Kanir & Co on new trends in the Legal Capacity and Guardianship Law.

Adv. Yonathan Kanir and Adv. Millie Indig || July 2017

A guardian is a body or person appointed to take care of another person who cannot take care of his own affairs. Since this is a delicate and sensitive issue which requires overseeing, the Administrator General has been authorized in the Law to serve as an involved and necessary party in the process of selecting a guardian. The purpose of the supervision is to ensure that guardians, even if they are family members, properly perform their duties and to prevent abuse of the power entrusted to them.

A person for whom a guardian is appointed, with all the fateful consequences that this entails, creates a significant burden on his family. Until recently, the feeling engendered by the Administrator General's Office was that the ward must be taken care of at all costs, even at the expense of his family's wellbeing.

For over a year, however, there has been a shift in the courts' attitude and the internalization that part of a person's welfare, is the welfare of his family. Family members may also be victims of a situation they did not wish to be in, they also have names, faces, difficulties, a given financial situation and constraints that need to be taken into account.

The new trend in case law explicitly places for the first time new issues in the considerations basket – not only the rights of the ward, but also the autonomy of the family, the consequences deriving from the need to appoint a guardian and the economic impact on the ward's relatives. 

When a person is appointed as a guardian, he must be careful not to fall into a situation of conflict of interest, but the courts have recently sought to provide a solution where actually the ward himself can take care of the members of his family, thereby also improving his own quality of life.

The first prominent indication of the change in direction came in a case last year adjudicated by Ashdod Family Court Judge R. Kodler Ayash (Guardianship Case 55551-06-15), in which parents of a child defined as a "ward" due to disability and cerebral palsy sought to use the damages which the child had received to purchase an apartment for the wellbeing of all members of his family but the Administrator General had expressly objected to such a transaction. 

The Family Court held that the time had come to move from focusing on the integrity of the ward's property and wealth, to a broader approach which interprets "the welfare of the ward" as also recognizing the right to use his property for the benefit and to take care of the members of his family, and the understanding that it is better for us as a society to facilitate their wellbeing.
This issue becomes even more stark when the members of the family maintain that had it not been for the sad situation which has befallen him, the ward himself would have chosen to invest his money in the manner now required by his family.

The new trend in case law allows the ward's money to be used while following economic models that take into account his future needs in a controlled manner. It should be emphasized, however, that the "responsibility" of the ward shall only be taken into account in a situation in which he is known to have the requisite economic ability.