On The Reform Of Chinese Adult Guardship System

This paper consists of introduction and six chapters. The chapter one analyzes the necessity of reforming current system of Chinese Adult Guardianship from three aspects as follows:â‘ current status of Chinese Adult Guardianship System;â‘¡ew requirements to international protection of mental disorders in human rights;â‘¢the new problems of aging of population. Chapter two introduces the process of reformation of the Adult Guardianship System in countries of the Common Law and the Civil Law, and summarizes characteristics, experience and enlightenment of reformation. Chapter three identifies macroscopic guiding principles of reform, namely, to proceed from reality and seek truth from facts, liberate the mind and keep pace with times, implement human-orientation ideology, emphasize on co-existence. It is necessary to emphasize on coordinating the relation between innovation and traditional ideas as well as innovation in the idea of the system. This paper identifies five specific law principles:the principle of presumption of ability, the principle of support of self-decision, the principle of least restrition, the principle of best interest, and the principle of shared responsibility between family and society. The Adult Guardianship System as part of integration of later human law, in content, consists of legal adult guardianship system and intended guardianship system. The characteristics of the system consist of respecting one's own initiative, ensuring living on one's own, maintaining human dignity, preventing infringement upon human rights, emphasizing on coexistence, and realizing justice and equality. Chapter four analyzes the substantial and formal items for legal adult guardianship system, and points out person under guardianship including mental disorders in narrow sense, the people of mental retardation, senile dementia people, the special physical disordered, but one who wastes is not included on principle. Types of guardianship adopt "elastic two-stage system", building up two types of guardianship:guardianship and assistance. Adult guardianship is divided into two types:property guardianship and personal guardianship. Guardians of all-around guardianship enjoy the general power of attorney and ratification, guardians of partial guardianship enjoy the right to agreement and ratification, and partial power of attorney. The liability of a guardian towards his ward falls within the scope of general tort liability, the liability of a guardian towards the third person fall under the guardian's own liability, and the principle of presumption of fault is applicable. In addition, the principle of equitable liability has been added. Court enjoys power to make decision and supervisory power on important matters. The Guardianship Services Bureau exercises day to day administrative supervisory power. The Family Meeting can also act as an intendant or select other people to act as the intendant. Chapter five analyzes on the necessity of establishing intended adult guardianship system; It points out that intended guardianship contracts should allow legal representation serve as a client. Power of attorney complies with agreement in principle. The establishing of intended guardianship contracts must be notarized, and declared judicially by The Court before taking effect. The Supervision Mechanism that the intended guardianship supervisors are empanelled by the court is adopted. Chapter six which analyzes the necessary of guarantee of system operation, emphasizes the formation and implementation of functions on Family Court, Guardianship Services Bureau, guardianship of professional legal person and Guardian Association, coordinates the relationship between them, and protects the operation system effectively from personnel, funding, ideas, etc.