by Tzvi Szajnbrum, Attorney at Law
More and more people are living longer but not necessarily a better or healthier life. The mental health of those being kept alive by machines or medication is a very delicate situation. More and more “mentally unfit” people are in need of a legal guardian or as it is called in Israel: An “Apotropus”.
In this short article, we will deal with the legal aspect of the “Apotropus” and other social aspects as well.
The “Hasui”:
This is the Hebrew term for a person who cannot take care of himself. It could be because he is suffering from a general or a mental disease such as dementia, etc. When a person is in such a medical/mental condition, he/she will need someone to take care of him and his needs. A relative is generally appointed as the guardian.
When dealing with a minor, the Attorney General (“Apotropus Ha Klali”, “Ha Yoetz Ha Mishpati La Memshala“) will be involved and even appointed as a co-guardian.
Legal Actions Taken by the “Hasui” Before an Appointment of a Guardian:
Legal actions taken before the appointment of a guardian could be considered valid even if they occurred when there were already provisions for guardian.
It could be that a person is suffering from “dementia” but has not been legally declared incapable (“Hasui”). In this case his decisions/actions can still be valid. However, it is important to note that there are different rules regarding what will be the result of the “Hasui” legal actions.
Legal Actions Taken by the “Hasui” After an Appointment of a Guardian:
The guardian’s consent can be given in advance, before the action, or after. The consent of the guardian does not have to be in writing or by his or her signature, but can also be given orally or by “silent consent” for example.
Legal Actions without the Guardian’s Consent:
The legal actions taken by a “Hasui” can be undone/canceled by guardian or by the Attorney General within one month after it became known to the guardian they were taken by the “Hasui” without his consent.
As long as an action was not cancelled by the guardian, the action is legally valid and the “Hasui” himself is not entitled to cancel the operation.
There are a few exceptions though:
Any kind of “credit transaction” will be considered null and void.
Simple legal actions, such as purchasing the newspaper or simple foodstuffs, a movie ticket, etc., cannot be canceled even if they were taken without the guardian’s consent.
Legal action taken by the “Hasui” with someone (a third party) that did not know, was not supposed to know and could not know about the “Hasui” condition. In such a case the action (signing a contract, purchasing an expensive item, etc.) can be canceled only if it can cause, or has caused harm to the “Hasui” or his property.
There are actions that even the guardian cannot permit or cannot take even on behalf of the “Hasui” or in his best interests. There are cases where a court decision must be given, such as when a guardian wants to sell the “Hasui’s” real estate property even for the “Hasui’s” own good (selling an apartment to buy a better one).
Many Responsibilities:
We all know that it is easier for a parent to raise four children than four children to take care of one parent, even when this parent is still mentally capable.
The guardian will have many responsibilities towards the “Hasui” – actually many obligations and not always many rights (such as when a guardian wants to sell a property belonging to a “Hasui”).
Who Decides When One Needs a Guardian?
In general, a physician can send a person to be evaluated by a psychiatrist or a geriatrist or any other professional dealing with the specific problem.
The decision is a medical decision in the first phase, but only after a court decision is given the doctor’s recommendation can be implemented.
A Word of Wisdom:
It is hard to see a loved one in a deteriorated mental condition. Do not be in denial because this is not in his/her best interest.
You are probably the best person in the world and the first to notice alarming changes in the behavior of one nearest to you. Take action immediately – consult a physician as soon as possible. You can and should be discreet, there is no need or reason to hurt someone else’s feelings but don’t wait.
