As in a host of other fields, the United Nations adopted a Convention on the Rights of Persons with Disabilities (CRPD) in 2006.

Like the other Conventions, it shares the fault of granting rights without stating clearly who bears the duty of supplying those needs which a person, because of his disability, cannot supply for himself. The result is that persons with disabilities have no clear address to which to make their claims; a general undertaking by a state party to the convention to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability and to pass necessary legislation, and to take appropriate measures, etc., is wholly inadequate.

A particular defect is the wording of Article 12 (2):

2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

This provision denies the existence of psychological and developmental disabilities, which limit the legal capacity of a person to make decisions about his own welfare. It has led to serious issues when persons with psychiatric illnesses demand that they be allowed to make decisions on their own behalf, even if such decisions are liable to lead to deterioration of their condition, such as discharging themselves from hospital, ceasing to take medications, etc. The provision also permits unscrupulous people to take advantage of disabled persons.

Article 12(3) does not help in situations where the person is not aware of the disability, and has no family or other person to assist:

3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

As in the case of children, the assistance and protection of persons with disabilities requires a list of responsibilities and specifying those who bear such responsibilities.

The starting point is that the state and its organs are responsible for identifying those persons whose legal capacity is limited because of disability, by requiring family members or others who come into professional or other contact with such a person to report to a specific agency, and to take on such tasks as may be necessary.

However, the state has the responsibility to ensure that any action to be taken by the state or its agencies, limiting or removing any area of capacity, must be restricted to that which interferes as little as possible with the autonomy of the person, consistent with that person’s welfare. It must also provide mechanisms for supervision of those who make decisions on behalf of the person with disabilities.

Philip Marcus was consultant to the Legislation Committee of the Knesset (Israel’s Parliament) throughout all the stages of amending legislation relating to appointment of guardians for persons with disabilities, appointment of persons to assist with decision making, and permitting enduring powers of attorney, thereby preserving decision-making capacity as long as possible, and requiring consultation with the person having a disability so long as this is feasible. He has also written articles (in Hebrew) with Dr Eliezer Perl, a psychiatrist with long experience in dealing with elderly people, on the legal, medical and Jewish law aspects of guardianship and testamentary and gift making capacity. He lectures to psychiatrists, psychology and lawyers on these topics.

Fees by arrangement.

For more information and to arrange a consultation, please contact: jurist@philip-marcus.com

PUBLICATIONS AND PAPERS (PARTIAL LIST)

Paper (in Hebrew): The Future of the Family Court: New Paradigms, Statutory Amendments, and More, January 2013

Position Paper: on the Arrangements for Settlement of Family Disputes Bill, 5774-2014 Delivered to the Minister of Justice and the Chairman of the Constitution, Law and Legislation Committee of the Knesset, August 2014

Paper (together with Dr Eliezer Perl): A Medical, Legal and Halachic Guide to Determining Capacity to Make a Will or a Gift Published (in Hebrew) in Assia, Journal of Jewish Medical Ethics and Halacha, Jerusalem,Vol. 24 No 3-4 pp 61-85,

October 2014

Section for Chapter: Expert Evidence in the Israeli Family Court

Published in Chapter by Jonathan W Gould et al, Scientific and Professional Knowledge for Family Court, section on International Perspectives on Admissibility Standards and Rules of Evidence in Leslie Drozd, Michael Saini, Nancy Olesen (eds) Parenting Plan Evaluations, Second Edition, 24-27, New York: Oxford University Press, 2016

Position Paper: Legal Capacity and Guardianship (Amendment No 19) Bill Delivered to the Ministry of Justice and Welfare Ministry, January 2015

Paper (with Dr Eliezer Perl): Guardianship of disabled persons: Medical, Halachic and Legal Aspects Published (in Hebrew) in Assia, Journal of Jewish Medical Ethics and Halacha Vol. 95-96, pp 35-77, Jerusalem, April 2016

The Israel Family Court – Therapeutic Jurisprudence and Jurisprudential Therapy from the Start

Published in The International Journal of Law & Psychiatry, Special Issue: Therapeutic Jurisprudence Today and Tomorrow, Vol. 63, 68-75, March-April 2019

Editorial (on proposals for family court reform). Irish Journal of Family Law, Vol 23 No 1 Winter 2020

BOOK

RESPONSIBILITIES: FAMILY TIES, FAMILY LAW, FAMILY COURTS

In progress