Research On The Implementati On Principle Of Adult Guardianship

When an adult loses his or her decision-making capacity, inevitably, there is a need for the guardian to make decisions on his or her personal matters and property matters. Although there are rules in relation to the guardian’s responsibility in our country, but not rules on how to make decision-makings.Therefore, how to make a choice for the guardian in practice is becoming a big difficulty.The focus of the consideration has changed a lot from Roman law to today: the early Roman law is given priority to the interests of the family. Until the period of the Republic,the ward’s rights and interests draws more attention(Expanded Best Intersets Standards). Along with a series of United Nations documents of 1970 s, people gradually begin to pay attention to guard’s self-determination. The transition from the paternalism to self-determination also reflected the residual wills is catching more and more attention.In the continental law system, however, people give more cautious to the residual wills, for some important issues still needing to be approved by the guardian’s or the court’s consent.Guards have self-determination rights only in some personal matters and unimportant matters. From the point of the conmmon law,there are more detailed considerations on the guardian decision-making. American schlor synthesized the spectrum of viewpoints about substituted judgment and best interest into five decision-making standards: Strict Substituted Judgment, Expanded Substituted Judgment, Expanded Best Interest, Strict Best Interest,and Subtituted Judgment/Best Standard. Unlike the US,the UK law focuses on giving the guardians consider factors to promote the guardian’s thought.In this paper, I will give my understandings on thefactors which involved.Next are the disscutions on the problems in our country’s legislation and judicial practice, and the analyse of the amendment of the civil code offering by the experts, trying to find out the most suitable code for China’s national conditions and the most respect to the ward’s will.Also,we will learn from the common law and find the balance between substituted judgement and the best interest.In particular, the adult guardianship and selection of adult guardianship is possible. In particular matters(real estate disposition, restriction of personal freedom, medical behaviors which involve physical integrity and produce seriously adverse effects), it’s necessary for the approval of the court or medical appraisal or diagnosis made by organizations.In donation issues, in addition to guard’s moral obligations, the guardian shall not take guard’s property as a gift.Also using Subtituted Judgment/Best Standard and limiting the use of Expanded Best Interest is reasonable in general matters. Finally,the provisions in Mental Capacity Act should be applying to make decisions for the guardian,which provides a basis for decision-making and the judge’s evaluation.In the first chapter, I will give an introduce on the adult guardianship system and the principle during the execution of the adult guardianship, for defining the legal relationship on both sides of the main body at the same time.The second chapter tells the changes in the principle during the execution of the adult guardianship from the Roman law to the the 20 th century.The third chapter reviews the principles of all contemporary country on adult guardian’s duties to perform.The fourth chapter describes the present situation of judicial practice in China and analyses relevant statements in the expert proposal on the civil code.The fifth chapter, puts forward the corresponding solution measures in view of the problem in our country at present.