A Study On The System Of Guardianship Of The Elderly

With the growing voice of human rights, the arrival of the aging society, the protection of human dignity and rights of older persons and other issues were concerned by national legislation gradually. In order to cope with the threats and challenges of this special period, in the late 20th century, different countries had to reform the system of guardianship, enact new singled laws or amend the original provisions. And then the new concept of elderly guardianship was proposed. Driving by new concepts of elderly guardianship, such as "respecting the autonomy of decision," "maintaining the normalization of life", different countries actively innovate guardianships, design the self-determined guardianshipwhich is corresponding to legal guardianship. Article 26 of the "People’s Republic of ChinaElderly Protection Law", which is implemented in 2013,clearly stated the self-determined guardianship, but the content of the specific system and application procedures have not been explained. After all, "Elderly Protection Law" belongs to social law, while civil legislation is still at the stage of development of "legal guardianship". There is not a concept called "self-determined guardianship" in civil law in our country yet. Because of the arrival of aging society, the drastic changes of population structure and family structure brought country and adult children heavy pension burden. According to the foreign legislative experience, the introductionof elderly self-determined guardianship system can greatly ease heavy pension burden.The introduction possesses practical significance. By grasping the reform trends, drawing on the success of the system outside the program and combining with Chinese actual situation, we give the proposals to build our specific elderly self-determined guardianship system.This paper is divided into five chapters.In the introduction, the reason of this topic is analyzed, and current researches at home and abroad are sorted briefly. We describe the idea of this thesis, research methods, as well as innovative points and shortcomings.In the first chapter, the basic legal issues of the elderly self-determined guardianship system are described. By interpreting the meaning of elderly self-determined guardianship concept, we summarize its features and briefly sortthe historical trend of self-determined guardianship systems.By analyzingthe value targets, the importance ofintroducing this system to China is clarified.In the second chapter, by comparison with the six similar civil law systems, we clarify the borderof rights and make sure of the basic meaning of the elderly self-determined guardianship system, which is the innovation of this thesis.In the third chapter, we study the elderly guardianship system of foreign laws. This chapter introduces two legal systems and four national legislations on elderly self-determined guardianship. Common law system is birthplace of "self-determined guardianship". The DPA and LPA emphasis the particular of elder and break the limitation of the traditional agent system. Then they innovative new care concept, put forward the new concept "self-determined guardianship". As a reference, civil law system countries also develop their guardianship system. On the basis of revising old rules, German put forward "old age authorizationsystem". While Japan enacted a detailed single law. Both of them are good references to our countries.In the forth chapter, the construction of Chinese elder self-determined guardianship system is discussed. This is the most important part in the thesis. We review the Chinese elderlyself-determined guardianship system. Current legislative situations are described, and the existing problems and limitations are analyzed.It is necessary to figure out four issues, namely, "who cares the elder", "who is taken care of, "how to take care", and "how to guarantee". And on the basis of learning from foreign advanced legislative experience, our elderly self-determined guardianship system is designed, from the macro and micro systems, as well as the additional measures.This analysis provides reasonable proposals forthe consummation of our elderguardianship system.