Britney Spears’ plea to a Los Angeles Superior Court judge to end her conservatorship has drawn global attention to the legal arrangement of conservatorship, also known as guardianship, existing under the laws of many countries. Spears has been subject to conservatorship since 2008, following highly-publicized mental health problems. As a result, she has had no control over financial or personal decisions for the last 13 years.
According to a media report,
[u]ntil 2019, Spears dropped an album every two to three years. She also had a four-year Las Vegas residency; her final performance grossed $1.1 million, the highest ever reported for a single theater Las Vegas residency show, according to the Las Vegas Review-Journal. That’s not to mention her “Piece of Me Tour” in 2018 grossed an estimated $54.6 million, according to Touring Data.
During this time, Spears also launched clothing and perfume lines, landed a luxury fashion campaign, and served as a judge on “The X Factor.”
According to a definition provided on the California Courts website, “[a] conservatorship is a court case where a judge appoints a responsible person or organization (called the “conservator”) to care for another adult (called the “conservatee”) who cannot care for himself or herself or manage his or her own finances.”
Spears’ case has elicited a discussion in Israel regarding the objectives of guardianship and its impact on a person’s fundamental right to dignity. In an interview with the Israeli newspaper YNET, Deputy Custodian of the Ministry of Justice Gali Gross stated that she was not familiar with the particular circumstances or US law on the case. In her opinion, however, Spears’ case was “very extreme, and would not have happened in Israel.” This post examines the rules that apply to guardianship under Israeli law.
Appointment of Guardians and Alternative Assistance Providers Under Israeli Law
The Legal Competency and Guardianship Law, 5722-1962, as amended (the Law), authorizes an Israeli court to appoint a guardian to a person who is unable to take care of his or her own affairs due to mental illness or intellectual disability, and who the court has declared legally incompetent. The current text of the Law includes a 2016 amendment that added arrangements other than full guardianship to those previously available. Accordingly, in lieu of a guardian, the court may appoint a decision-making supporter for an adult who, upon receiving support, can make decisions regarding his/her own affairs. The Law also regulates the grant and implementation of a continuous power of attorney (CPA), which a legally competent person may give to another. The Law narrowly defines the scope and duration of all these arrangements, and the modes of operation of persons responsible for implementation in consideration of the right to dignity.
According to explanatory notes for the draft amendment law, since the initial adoption of the Law there have been significant changes in social perceptions regarding persons with disabilities and the elderly (vulnerable persons). International conventions, such as the UN Convention on the Rights of Persons with Disabilities, which Israel ratified on September 28, 2012, and the Convention on the International Protection of Adults, which Israel had been considering joining, as well as Israel’s Equal Opportunity for Persons with Disabilities Law, 5758-1998, all reflect these changes. The drafters of the amendment suggested that the new approach emphasized the dignity and rights of vulnerable persons, both those enjoyed by all persons regardless of their vulnerability, and those resulting from its uniqueness.
The court may appoint a guardian for an adult person who has been declared legally incompetent. The court may issue such a declaration if it finds that, due to mental illness or mental retardation, the person is unable to take care of his/her affairs.
A guardian may also be appointed for “another person who cannot, permanently or temporarily, take care of his/her own affairs, in whole or in part, and there is no one who is qualified and willing to take care of them in his place.” In such a case, a guardian may only be appointed if the court has been convinced that without the appointment, the rights, interests or needs, of the person may be violated, no continuing power of attorney on the matters for which an appointment was requested had been duly deposited, and that:
[i]t is not possible to achieve the purpose for which the appointment of a guardian is required and to preserve the welfare of the person in a way that less restricts his rights, liberty and independence, after examining the alternatives in the circumstances, including the possibility of appointing a supported decision maker. (§ 33 A-B).
Continuous Power of Attorney
A legally competent person may give a CPA to one or more persons to act on his or her behalf regarding personal, medical, or financial matters. The Law defines “a legally competent person” as a person “who is able to understand the meaning of giving continuous power of attorney, its purposes and consequences, and if he or she is a person with disabilities – provided accommodations in accordance with the Law for Equal Rights for people with Disabilities, 5758-1998” (appointer; § 32A).
A person who receives a CPA must to the extent possible safeguard the appointer’s dignity and privacy, and act “in a way that will enable the appointer to realize his/her abilities and maintain the appointer’s maximum possible independence, in accordance with the appointer’s abilities.” (§ 32 H.)
Supported Decision-Making Option
The 2016 amendment law introduced a supported decision-making option as an alternative to guardianship. The decision-maker supporter may not make decisions on behalf of the person who receives the support. The Law provides:
The roles of a decision-maker will be these, in whole or in part –
(1) assist a person to obtain information from any [legal] body;
(2) assist a person in understanding the information required for the person to make decisions, including the possible alternatives and their consequences, and to explain … in a simple and clear language understood by the person and by using aids at the person’s disposal and in any way reasonable in the circumstances;
(3) assist a person in the exercise of that person’s decisions and the exercise of rights, including assistance in the expression of the person’s decisions towards third parties, to the extent and in a manner to be determined in the regulations. (§ 67 B (a).)
Termination of Appointments
The court may terminate a guardianship upon approval of a resignation request by the guardian, or upon finding that the guardianship should end because the guardian has not performed his or her duties properly or for another reason.
Guardianship over legally incompetent persons may expire upon revocation of incompetence by the court. Guardianship in other cases may end upon a determination by the court that the reasons for the guardianship have ceased to exist, or its purpose has been achieved. (§§ 60-63).
Unless determined that the appointer lacks legal competence, the appointer may terminate the CPA by delivering a notice to the person appointed to implement the CPA. The court may also revoke a CPA upon finding that an improper exercise of its powers has resulted in actual harm or negated the will of the appointer, or that the CPA derived from fraud, exploitation, or the application of undue or unfair influence; or was insufficient for protecting the interests of the appointer. (§ 32 V-W.)
The Law authorizes the Minister of Justice to regulate the termination and revocation of supported decision-making. While regulations addressing the termination and revocation of CPAs and related instructions’ were issued by the Minister of Justice in 2017, it appears that the regulations do not apply to supported decision-making at this time.
According to the Kol Zchut organization, supported decision-making may end when the person for whom the support was given passed away, is no longer interested in the decision support, or “is no longer in a position to allow that person to make decisions on his or her own with the help of support. For example, a situation in which the decision-maker is no longer able to manage his affairs and needs the appointment of a guardian.”
Other situations include cases where the decision supporter no longer meets the conditions required for his/her appointment, such as when a decision supporter appointed for property matters is declared bankrupt, or has passed away. Unless otherwise specified, the appointment of the decision supporter will end when the decision supporter was the spouse of the decision-maker and the couple divorced after the appointment.
The appointment will similarly terminate upon expiration of a term or satisfying a condition as determined by the court in the appointment order.
Sources on Guardianship Under Israeli Law Available at the Law Library of Congress
A search of the Library of Congress online catalogue has identified a number of sources, including the following:
- Legal Competence and Guardianship: Law and Regulations (Aryeh Greenfield-A.G. Publications, Sept. 2016)
- Mosheh Ben David, Apotopsut: Halakhah U-maʻaśeh [Guardianship] (2015, in Hebrew)
- Mosheh Ben David, Yipui Koah Mitmashekh: Apotropsut Ve-hilufoteha: Halakhah u-Maʻaśeh [Lasting power of attorney, guardianship and its alternatives : law and practice] (2nd ed., 2019, in Hebrew)
- David Polak, Apotropos Li-rekhush: Din u-devarim [Guardianship for assets : law and order] (2019, in Hebrew)
- Ruth Levush, Israel: Law for Removal of Guardianship from Parents Convicted of Serious Domestic Offenses Adopted, Global Legal Monitor (Jan. 15, 2021)
If you have questions about guardianship arrangements in Israel or in other countries you may contact us using our Ask a Librarian service. If you would like to access our physical resources, the Law Library has started its re-opening phase. Read more about it here.