Research On State Guardianship System Of Lost-only-child And Disable Elder

The guardianship of elder is becoming a public concern in China,due to the aging process and declining birthrate of society.Lost-only-child elder are getting more and more attention,as a result of the long-term Family Planning Policy.They have only gave birth to one child,once their only children is died in an accident when they are getting old,most of them can not be able to give birth to a child again.As the physiological function decline,their judgment ability and civil capacity can not maintain the same level as before.Especially when they come into disable status,who should take the responsibility of guardianship becomes a puzzle.Family is declared guardian to elder in current guardianship system of China,as for lost-only-child elder,they have no choice but to face the plight as a result of Family Planning Policy,which is different from other disable elder,but even more serious is the fact that Two-child Policy put forward recently makes them feeling unfair.As a result,there is the necessity for government to play the role protecting their personal rights and property rights.At present,studies on the lost-only-child elder in law mainly cover old-age security,social assistance and compensation,without exploration in terms of guardianship.Likewise,actual studies about guardianship system of elder focus on statutory guardianship and intended guardianship,ignoring the aspect of state guardianship.Therefore,it is of great significance to construct and perfect the State Guardianship System of Lost-only-child and Disable Elder in China.The main contents related to guardianship system of elder are stipulated in General Principles of Chines Civil Law and General Provisions Of Chinese Civil Code adopted lately,and partial contents are stipulated in Chinese Law of Marriage and Law on the Protection of the Rights and Interests of Elderly People.Before the introduction of the General Provisions Of Chinese Civil Code,only elderly people with mental illness and dementia patients were protected by the guardianship system.Ordinary elderly people,especially lost-only-child and disable Elder,were not protected completely.There were four main problems in the legislation at that time,including the failure of lost-only-child and disable elder to be included in the protection of the guardianship system,losing sight of the fact that there is not proper guardian for lost-only-child and disable elder,ignoring the relationship between personal care and survival care and the absence of state responsibility.The promulgation of General Provisions Of Chinese Civil Code,makes Guardianship System of Elder to be established.What is more,the promulgation defines the content of the state guardianship initially,benefiting the construction and improvement of State Guardianship System of Lost-only-child and Disable Elder in legal aspect.There are mature foreign experiences that government takes the responsibility as a guardian,for adults with no capacity or with limited capacity.To obtain relevant enlightenment,it is necessary to study the analogous systems of Germany,the United States and Canada.The construction of State Guardianship System of Lost-only-child and Disable Elder should be divided into six aspects,including the principle of guardianship,guardian,person in ward,guardian sequence,source of fund and supervision system.The principles should incorporate the priority principle,the principle of keeping self-determination prior and the principle of maximum benefit.The civil affairs department shall act as a guardian,and neighborhood committee or villagers committee should not be selected as a guardian but the role of assistance,since they are not government agencies.Lost-only-child and Disable Elder can be included in the scope of national custody,as they have no guardian qualified with the exhaustion of all means.Guardian's responsibilities include personal and property aspects,but the focus is on the personal.The main source of funding for the system is government finance,with the assistance of social funds.The supervisor of the guardianship may be the supervisory department within the civil affairs department,the upstream authority of civil affairs department,neighborhood committee,villagers committee and court.