Appointment of a guardian to an incapacitated ward

Abstract: the court will appoint a guardian to a person who is incapacitated and cannot attend to his own matters. The guardian may be appointed to attend to the body of a person due to his physical debility, appointed to attend to a person’s property due to difficulties the person has to attend to his matters. The request for the appointment of a guardian of a ward should be submitted to the Administrator General in addition to an affidavit of consent to be appointed as the guardian, a medical certificate and an affidavit of consent on behalf of first degree relatives.

Key words: guardian, Administrator General, ward, exploiting incapacitated persons, specification, competence, ward’s bank account, guardianship.

When is a person considered as incapacitated and in need of guardianship?

Section 1 of the Legal Capacity and Guardianship Law states that: “any person is granted with rights and obligations from the time of his birth and until his death.”

Section 2 of the Legal Capacity and Guardianship Law states that any person is competent for executing legal actions unless this competence was negated or restricted by law or following a court judgment.

In the absence of contradictory evidence, it shall be presumed that a person is competent to engage in legal actions unless otherwise proven.

The burden of contradicting the presumption of competence lies with the person claiming that the person is legally incompetent.

The appointment of a guardian for a person means that the person is not considered as capable and allowed to attend to his matters independently, however another person is entrusted with attending to that person’s matters, in whole or in part, in order to protect his interests and benefit.

Section 35 of the law states that the court shall appoint as guardian “anyone who, under the circumstances of the matter, appears to be most suited to the ward’s benefit.”

When a person’s judgment is harmed to a point that society sees that the person should be protected against himself – against his actions and omissions originating in faulty judgment of reality – and against other people, who may take advantage of his weak mind and faulty judgment – a guardian shall be appointed to that person.

However, a guardian will not be appointed only in circumstances of faulty judgment – it is possible that a person’s judgment is in order, however his physical condition prevents him from taking care of his body or property on his own – and even in such circumstances a guardian shall be appointed to this person.

A guardian may be appointed to the body of a person – to attend to the physical needs of a person. And a guardian may be appointed to attend to the property of a person – that is to say, to manage his funds and property – under the circumstances of the matter.

Submitting a petition to appoint a guardian for a ward with the Administrator General

A person interested to submit a petition to appoint a guardian of a ward should submit the petition for appointment of a guardian jointly with an affidavit and a medical certificate, and pay fees in an amount that is updated each year. The petition is submitted to the Administrator General in the ward’s residential area.

The petition and the affidavit should specify exactly the ward’s details, his/her medical and/or mental condition, and the reasons in respect of which an appointment of a guardian over the ward is required. The full Petitioner’s details should also be provided (ID. No., full address and telephone). In the event there are other respondents such as additional family members the petition should specify their particulars. It is recommended to sign the ward’s first degree relatives (parents, brothers, children) on a form of consent to appoint a guardian. The petition should specify the full details of family members who disagree with the appointment and/or who disagree to sign the consent form and add them as respondents.

Medical certificates attesting to the ward’s mental and/or medical condition should be enclosed.

The petition for appointment of a guardian should be submitted in 4 copies in addition to another copy for each additional respondent.

 

Guardian’s responsibilities

Guardian’s responsibilities are set forth in the Legal Capacity and Guardianship Law, 5722-1962. The guardian is obligated attend to the ward’s needs, act for the purpose of safeguarding his property, including management and development thereof, and determine his place of residence. The guardian is also authorized to represent the ward. This is under circumstances that the court did not restrict the guardian’s responsibilities.

Obligation to submit specification to the Administrator General

In accordance with the provisions set forth in Section 51 of the Legal Capacity and Guardianship Law, the guardian is obligated to submit a specification of the ward’s assets and liabilities within 30 days following the guardian’s appointment. The specification should be submitted in accordance with the Legal Capacity and Guardianship Law (Procedural Rules and Execution) 5730-1970, and specify all the ward’s assets, rights, obligations and liabilities – as of the appointment date.

The specification should be submitted on a suitable form and verify the said therein in an affidavit.

A printout of the ward’s bank account balances should be enclosed as of the guardian’s appointment date and confirmation with respect to entering a note in the ward’s bank account(s) regarding appointment of the guardian. For the purpose of obtaining the confirmation the guardian is obligated to present to the bank the guardian appointment order that was issued by the court.

If the ward is in possession of a vehicle, a copy of the vehicle license and confirmation regarding entering a note in the licensing bureau concerning appointment of the guardian should be enclosed. For the purpose of obtaining the confirmation the guardian is obligated to furnish the licensing bureau the guardian appointment order issued by the court.

If the ward is a shareholder in a company, a confirmation certifying entry of a note in the company’s books concerning appointment of the garden should be enclosed. For the purpose of obtaining the confirmation the guardian appointment order granted by court should be furnished to the Registrar of Companies.

 

References to other valuables held by the ward should be enclosed, if any, and references with respect to the ward’s routine income and expenses.

In the event the ward holds title in real estate, the guardian shall make arrangements so as to enter a note in the land register on the ward’s assets that a guardian was appointed to the ward.

The guardian is obligated to furnish the land registry office (Tabo), Israel Land Administration and/or the housing company, as the case may be, the original appointment order and enter the appointment where relevant.

An abstract of title should be enclosed to the specification or a confirmation issued by the relevant registry, including registration of a note concerning the appointment of a guardian.

If additional assets belonging to the ward are discovered after submission of the specification, a complementary notice should be delivered to the Administrator General, specifying the additional assets that are discovered, within fourteen days following their discovery.

In general, examination of the specification requires payment of a fee. Payment duties shall be set after examining the specification and a payment voucher shall be sent to you accordingly. After making the payment you should deliver to the Administrator General office the voucher bearing payment stamp as reference that payment was made.

 

The guardian’s obligation to manage accounts in respect of the ward’s assets

In accordance with Section 53 of the Legal Capacity and Guardianship Law and Legal Competence Regulations, the guardian is obligated to keep accounts in anything related to the ward’s financial matters.

As part of managing the ward’s accounts, the guardian shall take the following actions;

  1. Opening a current account in the ward’s name, that will be managed by the guardian. For the purpose of opening the account the guardian should furnish the bank the original appointment order. All of the ward’s moneys shall be deposited to this account and all payments shall be made from this account. To the alternative, in the event the ward has an account in his name, the bank should be furnished with the appointment order so that the bank will add a note that the account is managed by the guardian. All of the ward’s financial transactions should be concentrated in this account.
  2. All references of the transactions performed in the account should be maintained in the reports delivered to the inspection of the Administrator General.

The guardian’s obligation for annual reports

  1. The guardian is obligated to report to the Administrator General at least once a year about his actions, and also upon expiry of his office. The guardian is obligated to deliver the Administrator General full information about all the actions that were performed in the ward’s assets.
  2. Inspection of the periodic or annual report submitted by the guardian requires payment of a fee according to the required report classification. The payment order shall be delivered jointly with the report request.

The following details, inter alia, shall be specified in the guardian’s periodic report, according to the required report type.

  1. Receipts – all receipts must be reported such as wages, pension, allowances, proceeds received from selling the ward’s assets, including real estate, proceeds generated from rent, investments, foreign currency savings plans, and any income of any source.
  2. Payments – all payments paid out from the ward’s funds must be reported such as: hospitalization expenses, subsistence, medical care, pocket money, clothing, rent, taxes, electricity, purchasing special products, travel, attorney fees and so on.
  3. A total balance confirmation in each bank should be enclosed to the report as of the report submission date.
  4. The guardian is obligated to furnish any detail or document that is required by the Administrator General during the report inspection process.

Upon termination of the guardianship period the guardian shall furnish a final report.

Inspection operations are made by professional inspectors on behalf of the Attorney General.

 

Examining the financial reports by a tax advisor

  1. The financial report should be furnished to the tax advisor for the purpose of inspection and preparation according to the list published in the Administrator General website under the tab “supervision over guardians” – full questions and answers about the manner of managing the funds and property, and enclose the following documentation:

-        Balance confirmations and bank statements of all bank accounts including foreign currency.

-        Confirmations in respect of the ward’s income from all sources:

-        Annual confirmations of allowances, pension, rent and so on.

-        Business profit and lost statement.

-        Contracts and receipts in respect of leasing or selling property, payment of alimony.

-        Confirmation of deduction of tax at source from interest/dividend/securities) Form 867 or 867A.

-        References in respect of the ward’s expenses classified according to expense type.

  1. Upon completion of the work by the tax advisor, the guardian shall sign the financial report. The tax advisor shall deliver the report to the Administrator General and the appointed guardian in addition to his opinion as to the status of the financial report and transparency thereof.
  2. The tax advisor shall return the documents to the appointed guardian.
  3. The appointed guardian is obligated to keep all documents and references for a period of at least 7 years for the inspection of the Administrator General.

 

The actions of the guardian in the ward’s assets conditional upon obtaining the court prior approval:

Section 47 of the Legal Capacity and Guardianship Law sets forth the types of actions in the ward’s assets that require the court’s prior approval as specified hereunder:

  1. Sale, transfer or pledge of real estate property such as an apartment, agricultural farm and a lot.
  2. Lease on which tenancy protection laws apply.
  3. A transaction whose force is contingent upon registration in a register kept by law, for example sale of a vehicle.
  4. Giving gifts except for gifts and contributions that are given as customary under the circumstances;
  5. Providing guarantees;
  6. Another action that the court prescribed, in the appointment order or thereafter, as requiring confirmation as said.

Furthermore, in any action entailing the imposition of any liability on the ward such as loan, pledge, guarantee and so on, the court should be approached for the purpose of approving the action before its execution.

Investing the ward’s funds

Pursuant to Regulation 4.A of the Legal Competence and Guardianship Regulations (Ways to Investment Ward’s Funds) 5760-2000, investment of ward’s funds whose value exceeds NIS 500,000 (linked to the index as of 1.1.12 – NIS 637,429) requires the court’s approval.

The guardian is obligated to submit a petition to approve the ways of investment once a year or at a time set forth by the court.

 

Collecting the guardian’s fees

In accordance with the provisions set forth in the Legal Capacity and Guardianship Regulations (Rules concerning Setting Guardians’ Fees) 5749-1988, the guardian is entitled to receive fees for serving in his position.

The fee rates set forth in the said Regulation 5(a) are updated annually according to the rate of increase of the new index in comparison to the basic index.

As of 1.1.12 guardian’s fees, when the ward is hospitalized, total NIS 510 per month. Guardian’s fees when the ward is not hospitalized totals NIS 1,023 per month.

A guardian interested to receive fees should submit a suitable petition to the court, when the respondent to the petition is the Administrator General.

For additional information concerning the guardian’s fees, see Legal Capacity and Guardianship Regulations (Rules concerning Setting Guardians’ Fees) 5749-1988.

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