For patients requiring medical treatment who are unable to handle their own affairs, a guardian must be appointed to consent to provision of the proposed treatment
In urgent situations, medical treatment may even be provided without patient or guardian consent
Hospitals have procedures for appointing a temporary guardian, and providing medical treatment without appointing a guardian, which are intended for situations in which urgent medical treatment is required
- According to The Patient's Rights Law, medical treatment may not be given to a patient, unless the patient first gave informed consent to receive the treatment (in a medical emergency as defined by law, with the approval of three doctors, urgent medical treatment may be provided even without informed consent).
- For patients not in a medical emergency who require medical treatment, but whose physical and/or mental condition does not allow consent to medical treatment to be obtained, it is necessary to obtain consent from someone authorized to provide it. Consent may be given by a representative previously granted medical power of attorney by the patient, or by a guardian of person appointed for the patient by a court of law.
Distinction Between Power of Attorney and Guardianship
- Power of Attorney
- According to Section 16 of The Patient's Rights Law, patients may appoint a representative who will be authorized to consent to medical treatment on their behalf.
- Patients may only make such an appointment when they are in a clear state of mind and understand the significance of power of attorney, and may be in a possible future situation, either foreseeable or unforeseeable, where they themselves will be unable to consent to medical treatment.
- For more information, see: Power of Attorney for Medical Treatment.
- When a patient who is not in an emergency situation requires medical treatment for which informed consent is required, but the patient is unable to handle his/her own affairs, then a guardian must be appointed to give consent to the proposed treatment.
- Patients may not appoint a guardian for themselves. A court determines if a patient is unable to handle his/her own affairs and appoints a guardian.
- It may be decided that a patient needs a guardian in the following cases:
- When the care provider has concern regarding the patient's capacity to understand the situation and give informed consent.
- The patient is unable to give informed consent due to one or more of the following:
- Mental illness
- Demented state
- Cognitive disorder
- Other physical or emotional state that prevents the provision of consent to treatment
Possible Appointed Guardians
According to law, the following may be appointed to be guardians:
- Individuals - Anyone, including the ward's spouse, family member, lawyer, or anyone else
- Corporation - Institution, foundation, non-profit organization, etc. (such as The Fund for Treatment of Wards of the State or SHEFFER).
- Guardian General - The Guardian General is a position in the Ministry of Justice responsible for all issues pertaining to guardianship. The law allows the Guardian General to be given guardianship over an individual ward.
- A special committee for issues of guardianship for Holocaust victims was established to serve as a guardian for those who require it due to trauma caused by the Holocaust and its aftermath. The committee is composed of a representative from the Ministry of Health and a representative from an organization that handles issues related to Holocaust victims.
For details on the process of appointing a guardian, see: Appointment of a Guardian.
Appointing a Guardian of Person for Patients in Prolonged Hospitalization
- For patients requiring routine or other medical treatment (but it is not emergency or urgent situation), an institutional arrangement, or any other type of treatment, but whose physical/mental state does not enable them to perform what is required or provide consent, the care provider in the prolonged hospitalization facility must obtain consent to hospitalization or treatment from a qualified representative.
- If the patient has not authorized a representative or guardian, the care provider in the facility must initiate the process to appoint a guardian.
- The relevant social worker in the medical facility or Ministry of Health office is responsible for coordinating between the relevant bodies during the appointment process, including gathering necessary documents, etc. When the patient is hospitalized in a medical facility, the director of the facility must help prepare the necessary materials, including making appointments with medical specialists if required.
- In this case, the required documents are the same as those described above for submitting an appointment request.
- The request requires a medical opinion from a medical specialist in a field which is relevant to the patient's condition which is causing the appointment of a guardian to be necessary.
- The medical specialist must be familiar with the patient and have cared for him/her for a period of time.
Appointing a Guardian in Urgent Situations
- In urgent situations, the following documents are required in addition to the normal documentation required for appointing a guardian:
- Professional medical opinion from a doctor regarding the need for urgent medical care, which includes the following information, among other things: an explanation of the nature of the necessary medical treatment, risks and prospects of performing or not performing the treatment, the degree of urgency of carrying out the treatment, recommendation regarding the need to appoint a guardian and the required duration of the required appointment.
- Professional medical opinion from a medical specialist regarding the patient's fitness to make decisions related to their body. This is required when the care provider has concerns regarding the patient's capacity to comprehend and provide informed consent.
- The doctor must examine the patient after a decision has been made regarding the need to perform the medical procedure.
- In some cases, one approval is sufficient with Attorney General approval.
- When there is no suitable candidate to be appointed as a guardian or if the guardian appointed in the past is not suitable, the court may be requested to approve medical treatment. In this case, such a request must be submitted by an authorized representative, the Attorney General or another interested party.
- According to the Patient's Rights Law, in some cases medical treatment can be given without informed consent from the patient or guardian (such as in the case of a hip fracture in an elderly person). For more information, see: Informed Consent for Medical Treatment.
- Hospitals have procedures for appointing a temporary guardian, as well as for approving urgent medical treatment without the appointment of a guardian. These proceedings are short and intended for cases in which emergency medical care is necessary. It is recommended to consult with the hospital's social services department regarding procedures and options for performing medical treatments when it is not possible to obtain the patient's consent.
Legislation and procedures
- Medical Administration Circular 10/2006 from 04.06.2006 - appointment of a guardian over person and/or property as part of prolonged hospitalization.
- Administration Circular 31/99 from 18.08.1999 - urgent court petition to appoint a guardian of person or approve performance of medical treatment.
- Medical Administration Circular 30/2004 from 11.07.2004 - Surgery for a broken hip on an elderly person without the patient's consent
- Gaurdianship procedure for personal matters (body matters) on the Ministry of Justice website.
- Information about requesting appointment of a guardian over person/property at the Ministry of Justice website.
- Guardianship Guide - A (free) online digital course given by the Ministry of Justice, the Administrator General and Israel Digital
- Original content written by the IMA.
- English translation and maintenance by The Shira Pransky Project.