O

ver the past few months, the issue of conservatorship has been thrust into the global headlines because of the protracted legal struggles of singer Britney Spears. After a concerted effort, which included the fan-led “Free Britney” campaign, documentaries, and a very public legal battle, the singer’s father, Jamie Spears, announced two weeks ago that he would step down as his daughter’s conservator after 13 years. But Spears’ case is far from unusual and in Israel, too, there are plenty of cases in which a conservator is appointed for all the wrong reasons – and without the subject of the order being given a say in the matter.

The case of Y. is just one of many. This year, Y. celebrated her 100th birthday. Even though she has no family, she did not celebrate alone: several volunteers from organizations who have been looking after Y. for years gathered at the home of her chief caregiver, S., to mark the occasion. Y. is a Holocaust survivor who lives alone in an apartment in central Tel Aviv. Her husband died many years ago, as have her friends, but even at her advanced age, Y. remains lucid, has a highly critical outlook, and is a sharp thinker. She coordinates between her army of caregivers and companions over the telephone, she attends cultural events with them and, with their help, goes shopping.

In the past few days, however, she discovered that, once she turned 100, she was no longer a free woman. S., who wanted to find a new caregiver for Y., decided to involve a municipal social worker, only to discover, to her horror, a situation that she now describes as a witch-hunt.

In a conversation with Shomrim, S. says that “without our knowledge, there was a court hearing that Y. was not invited to attend. A geriatric doctor visited Y. at her home, and she told him that she does not want a court-appointed conservator. Nonetheless, he wrote a report that she never saw, and he convinced the court to appoint a conservator immediately. Y. wasn’t’ asked to attend, the judge never met with her or even spoke to her.”

This month, the conservator, who was arbitrarily appointed by the court and the municipal social worker, turned up at Y.’s apartment and informed her that he had blocked access to her bank account and credit cards. Even the installation of a new air conditioning unit would, from now on, need the permission of a person that Y. and her caregiver barely know. “We had to Google this guy’s name just to try and figure out who he is,” says S. “He even does the shopping for her, but, because he doesn’t know her at all, he bought products she doesn’t eat – at her expense – all of which was thrown into the garbage.

“Y. told me, the social worker and even the conservator himself that she doesn’t want him, she wants control over her life, and she wants her independence back. But no one listens to her. The cancellation of her credit card meant she owed money to her cable company, to the water company, and to the municipality. It was all done in such a rough way. They appointed a conservator for a 100-year-old woman who is perfectly lucid and turned her overnight into someone who is helpless.”

10,000 conservatorship cases a year

Y.’s group of volunteers, with the help of expert lawyers, is currently raising the money needed to restore the independence she has been denied. She may yet be successful. But hers is just one story in an ocean of similar incidents, involving many often-unwilling Israelis – including those with disabilities.

Every year, courts in Israel appoint thousands of conservators without meeting with, hearing from, or even informing the relevant people that their independence is being taken away. In many cases, there are legitimate medical reasons for this: there are some people who are defined as “unable to comprehend,” and are not called in for the court hearing. But people with other disabilities, like Y., are not even considered by the courts. Their fate is in the hands of others, primarily the judges, who have the power to ask for the subject of the hearing to be involved – and can also seal their fate and deny them their independence without even meeting them or someone representing them.

S. says that “without our knowledge, there was a court hearing that Y. was not invited to attend. A geriatric doctor visited Y. at her home, and she told him that she does not want a court-appointed conservator. Nonetheless, he wrote a report that she never saw, and he convinced the court to appoint a conservator immediately. Y. wasn’t’ asked to attend, the judge never met with her or even spoke to her.”

It is doubtful whether there is a clearer and more brutal example of Israeli citizens having their fundamental rights trampled over. People with disabilities, both physical and cognitive, face a myriad of obstacles, but they are surely at their weakest when the courts utterly and completely negate their rights as citizens. Even after a thorough legal reform, which was designed to bring order to the whole issue of legal capacity and conservatorships, people with disabilities are left with severely impinged rights in the courtrooms.

“Prisoners are brought into the courtroom for every single hearing in their case,” according to attorney Liron David, the Director of International Relations and Development for Enosh – The Israeli Mental Health Association. “The state invests in ensuring the rights of prisoners and makes sure that they are heard by their judges at every hearing, from the most insignificant to the most important. But people with disabilities have no guarantee that they will also enjoy this most basic of rights. They are not represented and there are hearings about their cases in absentia.” The frustration that David expresses is echoed, it seems, by everyone involved in the issue. In most advanced countries, the laws changed long ago; in Israel, even though we’re in 2021, there is still no legal requirement for people with disabilities to appear or even be represented in court.

Some 10,000 conservatorship files were opened in Israel in 2020. These cases seek to revoke from a person with a physical or cognitive disability (people with learning disabilities, the elderly, minors, people on the autistic spectrum) the right to make certain life decisions, including medical and financial decisions. In some cases, the court will decide to deny a person all their rights in perpetuity; in others, the court will decide to limit a person’s freedom in only certain areas, such as medical or financial matters. In all these cases, those rights are transferred to another person, who is authorized to conduct the affairs of and make decisions for the person in question.

Currently, there are some 65,000 people in Israel living under a conservatorship, usually for the rest of their lives; most of the conservators are private individuals, but some are companies or professions conservators. Over the past two decades, there has been a huge increase in the number of conservators appointed in Israel: In 2003, there were just 23,000; now, that number has nearly tripled. According to an interministerial report, the reason for the increase is not just natural growth – that is, longer life expectancy, which could explain the growth among the infirm elderly. Rather, the report stated, it was also down to “an increased use of the conservatorship apparatus.” Indeed, compared to other Western countries, like the United States or Great Britain, the per capita number of conservatorship cases is strikingly high.

The detail the reform forgot

Countless reports and critiques have been written on the failings of the conservatorship process: the damage is done to the rights of people with disabilities; the inadequate supervision of conservators, especially when it comes to the financial and property management of their charge; the lack of human resources; and the antiquated legal framework. There has been public criticism, State Comptroller reports, Supreme Court petitions, and various committees that have sought to offer solutions to a complex problem.

“The state invests in ensuring the rights of prisoners and makes sure that they are heard by their judges at every hearing, from the most insignificant to the most important. But people with disabilities have no guarantee that they will also enjoy this most basic of rights. They are not represented and there are hearings about their cases in absentia.”

In 2016, this criticism led to a major overhaul of the law, spearheaded by the Justice Ministry and the Welfare Ministry. The goal was to fine-tune the definition of legal capability and conservatorships – an area that, in the seven decades that Israel has existed, had barely been looked at. Many hours of discussions in the Knesset’s Constitution, Law and Justice Committee produced a major reform, but the vast majority focused on facilitation, such as “decision-making assistance” for someone with a disability, rather than appointing a conservator.

One major problem, however, remained almost totally unchanged, even after the new reform: a person with a disability who argues that he or she does not need a conservator does not have to be in court for the state to decide to appoint one anyway. One senior civil servant who is involved in the matter, and who asked to remain anonymous, told Shomrim that, “while the 2016 reform introduced major changes, in practice, we are left with a vulnerable group whose voice is not being heard; the revolution that occurred did not filter down to the courts. There is a huge gulf between a person whose voice is heard and someone who is not heard; this must change.”

She asked for a new conservatory. No one listened

N. remembers with shock the moment the letter was delivered to her home. She opened it and discovered that she had been made the legal conservator for A., a young girl with mental disabilities. N. agreed to the request but expected to be asked to appear in court, to see if she was fit for the job. No one bothered to contact her.

“I’m not a relative,” N. says. “But I know the girl’s mother and she asked for me to be appointed her daughter’s conservator. This is a position that, in effect, chains me to this girl for many years, but I agreed since I know her.” She adds that “this girl has a lot of money in her name.” During the process, N. met with a Welfare Ministry social worker, who wrote a legal opinion for the court. Thereafter, the social worker met with the girl.

"I was surprised to discover that the report submitted by the social worker to the court didn’t make any mention of what the girl said. It was obvious to me that the social worker was siding with the mother, who was absolutely adamant that I be appointed conservator,” says N., who intended to share with the judge the girl’s wishes when she was summoned to a hearing.

“At the meeting, the girl stated that she didn’t want me as her conservator and that’s because I didn’t allow her to buy a telephone. I was surprised to discover that the report submitted by the social worker to the court didn’t make any mention of what the girl said. It was obvious to me that the social worker was siding with the mother, who was absolutely adamant that I be appointed conservator,” says N., who intended to share with the judge the girl’s wishes when she was summoned to a hearing.

Shortly afterward, however, she got notice that she had been named the girl’s conservator. “I couldn’t believe it,” says N., who is still in that position, “when I realized that I had been appointed conservator without the court hearing the girl’s opinion and that everything had been decided over her head. Even though she specifically said that she doesn’t want me as her conservator, no mention was made of that in the report. I saw just how tendentious the whole process is and how easy it is for someone not to be heard.”

Judges are quick to rule

The 2016 reform was spearheaded by representatives of various non-governmental organizations, along with civil servants. Most of the people interviewed for this article emphasized the revolution that has taken place in the past few years.

One senior government official who is deeply involved in the issue is at pains to point out, first and foremost, that “the situation today is better than the previous legal situation, wherein someone was appointed conservator for every issue and for life – whether the subject of the order was an 18-year-old person on the autistic spectrum or an 80-year-old whose children claim that he or she is wasting money. That was the practice for many years, but now, at least, there’s a process whereby a conservator can be appointed only for property matters or only for healthcare – and that’s not necessarily a life-long appointment.”

And still, every interviewee broadly agreed that, despite all the talk about a revolution, no one addressed the very severe harm to the rights of people with disabilities in the courtroom. Ironically, there was a lot of talk during the many hours of discussions in the Knesset that preceded the reform, about the importance of having people with disabilities present during hearings about them. The court management claimed that it would require the appointment of dozens of new judges, while the Welfare Ministry demanded money to hire extra welfare officers. The government failed to come up with the requisite budget. Prisoners, in contrast, are brought to court in special vans for their hearings. When it comes to people with disabilities, however, there’s no money.

One senior government official who is deeply involved in the issue is at pains to point out, first and foremost, that “the situation today is better than the previous legal situation, wherein someone was appointed conservator for every issue and for life – whether the subject of the order was an 18-year-old person on the autistic spectrum or an 80-year-old whose children claim that he or she is wasting money. That was the practice for many years".

In only 10 percent of the conservatorship cases in Israel today is there a court hearing; in even fewer cases is the subject of the hearing is present. Moreover, court documents pertaining to the process itself – the request for a hearing, the social worker report, and even the decision itself – are not necessarily made available to the person around whom the entire process revolves. These figures were published by Bizchut, the Israeli Human Rights Center for People with Disabilities, and are based on what has been told by the management of the courts, which declined to share current figures with Shomrim.

“There’s no requirement to have a hearing and there’s no requirement for the subject of the case to be represented,” confirmed Ronen Gil, a former member of the Autistic Community of Israel, which played a major role in drafting the reform legislation. “At the time that we were working on the law, we were a coalition that tried to introduce a major change in the conservatorship situation in Israel. We managed to do a lot, but the primary obstacle that still exists is the courts.”

Even in cases where there is a hearing, judges sometimes find it hard to understand people with disabilities. This absurd situation means that judges almost automatically appoint a conservator for people whose only problem is that they find it hard to speak and communicate with their surroundings. In order to give judges the tools they need to improve their ability to hold hearings with people with disabilities, Bizchut was invited to hold courses for judges, where they would be offered suggestions as to how to make their courtrooms more accessible for people with disabilities. Encounters between judges and people with disabilities, as well as a comprehensive understanding of the possible adaptations they could make, should give the courts the tools they need to hear these people and ensure that they are given a fair hearing.

“The judges are quick to bang their gavels and make a ruling,” says Ronen Gil, a former member of the Autistic Community of Israel. “I have been diagnosed as being on the autistic spectrum, so in principle, my father could easily take that diagnosis, present it to the court and ask to be appointed as my conservator – without me even knowing that the wheels are in motion".

A study conducted in 2004 by Prof. Israel Doron found that in just 3 percent of the conservatorship cases that came before the courts were the subject of the request represented or even heard. Doron’s findings were later confirmed by Dr. Meital Reich, the head of legal aid at the Justice Ministry. To put it simply: In almost every case, the court found in favor of the side seeking the appointment of a conservator, without seeing, meeting or hearing from the person who, in many cases, is facing a life-long conservatorship.

“The judges are quick to bang their gavels and make a ruling,” says Gil. “I have been diagnosed as being on the autistic spectrum, so in principle, my father could easily take that diagnosis, present it to the court and ask to be appointed as my conservator – without me even knowing that the wheels are in motion. I’m not a party to the process and, in cases like mine, where there’s a diagnosis, there’s no need for an expert opinion. While it’s true that, because of the reform, there are slightly fewer sweeping appointments, and judges are trained to deal with the issue, in practice, it’s too little and it’s too slow. Most of the judges simply don’t know anything about the person being subjected to a conservatorship, so they don’t know how limiting the restrictions should be.”

The alternatives

“In theory, no one should have a conservator appointed in court and, in most cases, it should be possible to find a fair alternative, which balances between the need to offer assistance and the infringement on such fundamental rights,” says Idit Saragusti, Director of Monitoring and Policy Implementation with Bizchut.

“A family can file a conservatorship request with the court and append a letter claiming that one family member suffers from schizophrenia,” she explains. “The doctor isn’t asked to give testimony and, needless to say, the family member isn’t asked to appear before the court. Judges don’t know the person involved and they don’t look into the proposed conservator. They just accept the request and rubber-stamp the appointment. Given the dramatic significance that the appointment of a conservator has on a person’s life and the resultant infringement on that person’s liberty, this is an absurd situation.” Saragusti is highly critical that, “on an issue that has such profound ramifications for a person’s life,” they are not allowed to be heard. Her key demand is that there be a legal requirement for people who are the subject of conservatorship cases to be represented in court hearings.

“In theory, no one should have a conservator appointed in court and, in most cases, it should be possible to find a fair alternative, which balances between the need to offer assistance and the infringement on such fundamental rights,” says Idit Saragusti, Director of Monitoring and Policy Implementation with Bizchut.

The Justice Ministry’s legal aid department has, in the past few years, established a group of lawyers to represent people with disabilities, who often find that court hearings are held above their heads. There are currently around 100 such lawyers in Israel.

One judge recently told a lawyer who was interviewed for this article that he was about to make a ruling in the case of an elderly homeless woman, but agreed to a request to meet with her in court before issuing his decision. “The gulf between his preconception and reality, when he finally heard her opinion, was inconceivable,” the lawyer says. Indeed, after talking with the woman in question, the judge decided not to appoint a full conservatorship, but a more limited one, suited to her needs.

“A person whose freedom is being curtailed must be heard – or at least must be given every chance to be heard. It’s a huge group of very vulnerable people and decisions must not be made solely based on documents submitted to the judge,” says Naama Lerner, who used to work with Bizchut and is now an activist for the rights of people with disabilities. Her opinion is shared by senior Justice Ministry officials. They agree that, in addition to the reports and the tribunals that have been set up to rethink the issue, it is high time for legislation affirming the right to representation in court – or, at the very least, to allow people whose only crime is to have some kind of disability, to have their voice heard at hearings discussing their futures.

For now, the most vulnerable people in our society have no voice and will not always have a fair hearing – at a time when fateful decisions on the rest of their lives simply erase them from the equation.