New Research On Self-determined Guardianship

Adult Guardianship system was formerly established to protect and care for persons lack legal capacity. Along with the aging of population, adult guardianship system cannot solve problems that elderly men faced, such as physiological decline, health care, and economic security. Since middle of 20th century, the idea of human rights has progress and aging population caused many problems, which forced more and more countries reformed adult guardianship system. As one of the achievement of these reforms, Self-determined Guardianship was established to respect "right of self-determination", which was a popular human rights concept.Original form of Self-determined Guardianship system was "durable powers of attorney (DPA)" that established in United States by reforming agency principle of common law. This form was accepted and developed by many countries and judicial districts. The DPA may give the attorney the power, to make any specified personal care decision or decisions on the donor's behalf. As an alternative measure of guardianship, the DPA should be executed under court supervision. For people who have the foresight to put a DPA in place, the most significant advantage is that they have chosen their own substitute decision maker should they ever need one. This should mean that by their choice of attorney they can exercise or influence how and by whom decisions for them will be made if they should suffer the impairment or loss of mental capacity. The donor may make a DPA to cover one aspect only or may make a more general power. For example, the power may specify that the attorney has authority to make decisions about property and business affairs only or personal care only. As an alternative measure, the DPA is more conducive to the donor than guardianship.In 1999, Japan made Self-determined Guardianship Contact Law. Then our scholars began to study this new form of guardianship system, and suggested that we should transplant it. This paper will explain the new concept" Self-determined Guardianship" and its characteristics from all levels by absorbing the previous research achievements and studying the latest literature. In addition, it points out the problems existing in the development of the new guardianship, after providing a view that how this legal system was developed and utilized.Our country has entered the aging society, but our law system about elderly care remains incomplete. In the future, we should design adult guardianship system with human rights theory such as "activation residual capacity", "respect for self-decision" and "promoting normal life" in our civil code. Especially we should learn from other countries, draft and formulate Self-determined Guardianship law. In this essay, some proposal was put forward to our country's legislation.