Loss of Capacity in Dementia

A person with a disease that causes dementia, such as Alzheimer’s disease, undergoes a gradual process of change - from an independent person in control of all his own affairs to a person in need of assistance with all his functioning. This is a painful and frustrating process for both the patient and his family. 

However, a diagnosis of dementia does not automatically negate the person’s capacity to make decisions, manage his financial affairs, continue his regular activities (e.g., driving) or make his own medical decisions. This ability depends on the severity of his condition and the stage of the disease: 

A person with early dementia may, for so long as he is capable and understands the meaning of his actions and decisions, appoint a representative for medical treatment, under the provisions of the Patient Rights Law. This representative will be authorized in the future to make health decisions for the patient (see Circular from the Director General: Guidelines for the Use of Power of Attorney under the Provisions of the Patient Rights Law (06/2003)).

Recently, a form for granting a combined power of attorney under the provisions of the Terminally Ill Patient Law, which appears as an appendix to a Medical Administration Procedure regarding this, has been published.

The appointment of a representative (proxy) under the provisions of the Patient Rights Law allows the patient to appoint a person whom he relies upon and trusts, who will be authorized to make decisions on medical issues instead of the patient if and when the patient is no longer able to make medical decisions himself. 

It should be emphasized that a power of attorney under the provisions of the Patient Rights Law does not serve financial purposes, such as controlling bank accounts, receiving pensions and the like; it is also not intended for making end-of-life decisions (the right to die in dignity).

The appointment of a representative under the provision of the Patient Rights Law is a relatively simple process. The document is signed by three people:

If the patient did not appoint a representative under the provisions of the Patient Rights Law in time, if and when the need arises to make a medical decision and the patient is not capable of deciding for himself, the family has to apply for a court order appointing a guardian for medical purposes, or apply for court authorization of a medical procedure. This process is more complex, and involves the payment of court fees (see Medical Administration Circular: Application to Court for the Appointment of a Guardian for Medical Purposes or for Authorization of a Medical Procedure - Update (45/2004)).

The family should maintain continual contact with the physicians and care providers, and consult with them regarding necessary restrictions in daily activities due to the costant reduction in abilities. 

It is also important to obtain advice regarding measures that should be taken to prevent accidents and injuries and to ensure the patient’s wellbeing. 

One of the things impaired at a relatively early stage of dementia is the patient’s ability to manage his affairs, especially the management of finances and assets. In these instances as well, making arrangements in advance can facilitate processes and uphold the person’s wishes regarding the management of his affairs. Respective professionals should be consulted – a physician (regarding the patient’s medical condition and capacity), social worker (regarding the fabric of family life and its implications) and lawyer (regarding the legal aspects of granting power of attorney for financial and other matters). 

It is very important to plan in advance to provide the person caring for the patient, one trusted by him and his family, with access to the financial resources necessary to meet the patient’s needs, such as pensions and bank accounts. For example, if the bank learns that an account holder is not capable of making decisions, it is obliged by Bank of Israel guidelines not to allow any transactions in the account. This could leave the person caring for the patient without the resources needed for the care until a guardian for financial matters is arranged.

It is also possible to arrange with the National Insurance Institute to have a trusted person appointed, to ensure that the patient’s social security benefits may be used for his care.

The issue of continuing or ceasing to drive arises from the decline in orientation and judgment resulting from dementia. 

When family members recognize that the patient’s driving is dangerous, they must immediately limit his access to the car, in order to prevent danger to the person himself and to others. 

Initial signs that indicate a reduced ability to drive include: traffic violations, accidents, slow or inappropriate responses, longer than usual travel time to a destination, or failure to reach the destination altogether. In these instances, after consultation with the physician, the recommendation is not to allow the patient to drive; and the Licensing Bureau (Misrad Harishui) may be informed. The patient himself is obliged to inform the Licensing Bureau, if he is capable of doing so.

Furthermore, the law obliges the patient’s physician (and additional professionals) to report to the Ministry of Health (the Medical Institute for Road Safety) regarding a patient whose driving is liable to endanger him and others due to his illness. The Medical Institute for Road Safety assesses the report and decides whether to summon the person for an examination of his fitness to drive. 

The law obliges the patient’s physician and additional professionals to report incapacity to use firearms due to posing a danger to himself and others.

There are other issues, such as the practice of certain professions, which care providers may have an obligation to report to the proper authorities, to prevent the patient from endangering himself or others due to his condition.