Alternative to guardianship in financial affairs

Summary

This practice is the results of a pilot project and research conducted by Bizchut thanks to the Open Society Foundations. The findings of the project are presented in one very comprehensive publication available in English. The report presents the background issues and the alternatives found out in the pilot project. Then it discusses the findings by addressing dilemmas.

Issues addressed

The 3 areas treated in the project are:

1. Real estate issue

2. Banking issue

3. Contract issue

It looks at how effective in preventing harm without using guardianship the alternatives are.

Description of practice

Different tools are being presented and discussed in the 3 above mentioned areas:

Alternatives to guardianship in matters of real estate:

One interesting suggested tool is the Caveat or the land registry options.

A caveat is a contractual obligation that is registered in the land registry by a lawyer. It constitutes an obligation on the part of the landowner or the person holding the right to the land (not necessarily someone with a disability) to make a specific transaction or refrain from making one. Anyone can learn about the existence of a caveat by studying the land registry, which is open to the public.

A caveat is a tool that can include a variety of possibilities, at different levels of flexibility.

Alternatives to guardianship in banking:

One interesting example presented in this chapter is the Special combination of signatures in bank transactions.

It is based on a fairly common practice – often organisations or business have the requirement that all transactions above a certain amount require an additional signature. Authorized signatories do not have the authority to make any decision by themselves. In addition, while a guardian is the one who makes decisions, here the signature of the account owner is required for every transaction, in addition to that of the authorized signatory.

The author states that “this tool is a mechanism of co-decision-making, situated somewhere along the continuum between substituted decision-making by a guardian, and supported decision-making”.

Much more tools are presented and discussed in this chapter on banking, thus offering a large panel of solutions to fit the particular needs of each individual.

Alternatives to guardianship in contracts:

This chapter explores among other things the protection under consumer law: it shows the potential in consumer laws to resolve difficulties that arise regarding contractual relations. While consumer protection law is more convenient to use, this alternative does not provide a solution for cases in which an individual has already used the product or service, or when the contract is not for consumer purposes.

Finally, the report contains a part dedicated to dilemmas that arise from a consideration of the alternatives presented in the report. It is not meant to be authoritative in terms of deciding how to resolve these dilemmas, but discuss different aspects of it, as there may be different solutions in different countries for different people.

In the appendix, the report contains individual cases and examples of court rulings.

Analysis

The report is a very valuable contribution to the debate about alternatives to guardianship for people with different degree of autonomy while not exposing them to harm. It offers a large panel of tools, which are relevant in different contexts all of over the world, much behind Israel where it was tested and piloted.

This report can be a very inspirational source of ideas about tools complementary to supported decision-making, in the sense that it addresses only the financial and assets side of the decision-making, which still needs to be addressed as a whole.

One of the key issues discussed in the report is the thin line between limitations and protections. Different valuable points emerge from the report.

For example, the notion of evolving capacities is mentioned– restrictions versus evolving capacities – and how to improve the capacity to decision-making of a person. This includes the regular re-evaluation of each provision.

Another interesting discussing point is the need to have different persons in different roles: it is better to have two persons in two different roles: e.g. one supporter and then another “supporter” responsible for signature of the bank account to avoid the main supporter being also the “restrictor”.

The report however, clearly states that before utilizing a “limitating” tool, it should be clearly analysed wherever there are other accommodations that can be in place to enable people to retain full legal capacity without any limitations or restrictions.

The duty to accommodate plays a very important role in the discussion, as different types of accommodations should be allowed to answer the needs of each individual.

Further reading

You can read the full report here.

 

 

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