A Study On The Adult Guardianship System In Canada

Under the background of China's rapid economic and social development,problems like aging and the security of incompetent adults are becoming increasinglyprominent. Faced with the social reality of the annual increase of senior citizens,disabled elderly and mentally disabled people, coupled with practical dilemma like thechange of the unique"4-2-1 " family structure in our society and the weakening oftraditional family care functions, how to establish effective and realistic adultguardianship system has become a top priority. Canada, is known as "Paradise ofSenior Citizens", which adult guardianship system has developed from an inadequateone to an improved one, and provided China with positive inspiration for the futureestablishment of an adult guardianship system in China.Due to the fact that Canada had been colonized by the Great Britain and France,different sovereign states forced Canada to accept the institutions and concepts of twolegal systems in the world. Common law and continental law, which were enforcedwithin the field of Canada civil law, increased the complexity of legal formulation andapplication. Meanwhile, Canada gained the merits of two legal systems respectively,shaping the unique law with Canadian characteristics to some extent and makingCanadian legal system play an important part in the world.Reviewing the past is always giving us a more profound understanding of today.The origin of Canadian adult guardianship is studied in the first chapter of thisdissertation from the perspective of common law and civil law in Canada at first. It ispointed out that the Law of Parens Patriae in the UK and France's Napoleon CivilCode contribute a solid foundation to the establishment of early Canadian adultguardianship system. Then, influenced by the two systems of England and France, the early Canadian adult guardianship used plenary guardianship, with full heteronomyinstead of autonomy, completely disregarding wards under the guidance of theprinciple of best interests, focusing on the protection of assets rather than physicalprotection which made the loss of humanity in the early system led by the concept oflaw paternalism. Hence, the early system is always criticized later during the processof adult guardianship systems. As Canadian population has been increasing, Canadaranked among the aging societies in 1951, and the foundation of the pension systemwas sufficed to be built on the ground of the economic boom in postwar Canada.Canada enacted a series of laws for senior-citizen security, with the increasingconcentrations on the aging of government and society, the improvement of technologyin mental medical treatment, the impact from American deinstitutionalizationmovement, the valued dignity of persons under guardianship, and the change of thelegislative concepts in the adult guardianship, a partial guardianship system wasadopted in the adult guardianship system,which typical example was Dependent AdultAct in Alberta in 1978, which denied the simplification and the ossification of thewhole guardianship system, and began to pay attention to the personal safety of thedependent adults; which came to realize the safeguarding ability of them that perhapsnot lack extremely that they may be competent in their daily life and developed theleast restrictive principle for the dignity and the freedom of them. In the meantime, inorder to solve the problems like the guardians'absence and the abuse of guardian'sright, the public guardianship system was established, therefore, the adult guardianshipsystem was ensured and legal regulations related to it were enforced smoothly underthe supervision of the public legal agencies.The promulgation of CanadianConstitution Law in 1982 marks Canada has been a truly sovereign state. Theimportant part of the Constitution, The Charter of Freedoms and Rights, madeCanadian society feel equality and freedom more important so that personal freedomwas stressed. The wide application of enduring power of attorney in theAnglo-American countries of common law system and the abolishment of thedeclaration of interdiction system of civil law system in countries like Germany and France made Canada notice the needs and direction of carrying out the reform of theadult guardianship systme. The promulgation of Substituted Decision Act of Ontarioand Civil Code of Quebec in 1990s brought intended guardianship into common lawand civil law to provide potential adult lacking competence with a chance to choose.And the establishment of the competency assessment system and the establishment ofthe Public Curator provided an institutional guarantee for choosing a mode ofguardianship and the application of supervision. The respect of self-determination inthe intended guardianship system brought the freedom of choosing the mode of theguardianship for the first time. Since the foundation of the adult guardianship system,the freedom and dignity of wards has been elevated to a historic height, the humanityhas been released. Baby-boomers in North America become aged people in thetwenty-first century. Guardianship for the aged becomes a serious problem. With thespreading of the aged home-support mode and the problem from the practice ofintended guardianship, adult guardianship is now engaged in finding out andsupplementing the shortcomings of previous guardianship, the result is that assistedguardianship arises. Different from other modes of guardianship, assisted guardians areno longer the conventional guardians who must make decision for represented adults.This guardianship allows represented adults who have self-determination rights andcan make decisions with guardians together or by themselves, or with the assistance ofguardians. The affected adults includes not only those adults who have no mentalcapacity,but also includes the adults who can have mental capacity with assistance. Theconcept of international human rights protection has been integrated into civil lawsystem as the result of its establishment and it also makes people happy who aresuffering from mental disorder, intellectual impairment or physical disability.Canadian Adult Guardianship System provides a useful reference model for China.Among the existing laws of China, Only do a few laws and regulations include theprovision of adult guardianship system, like General Principles of Civil Law enactedin 1986, Suggestions on Civil Opinion, Protection of Disabled Persons and Rights ofthe Elderly Security Law etc. The comprehensive and systematic Adult Guardianship System has not been established. Meanwhile, China has a long way to go, comparedwith the world's contemporary development of Adult Guardianship System, inlegislative concepts and in selection of guardianship modes. The basic structure ofCanadian adult guardianship brings inspiration to the Chinese establishment of AdultGuardianship System, like changing legislative notions, using the principle of bestinterests and least restrictive, emphasizing self-determination and normalization ,enlarging scope of represented adults and building a public guardianship system tobuild our future adult guardianship system.