Research Of Self-determined Guardianship System

In China,the system of self-determined guardianship was established by the law on the protection of the rights and interests of the elderly,which was amended in2012.The general principles of civil law issued in 2017 further expanded its scope of application and formalized the the system of adult self-determined guardianship,That is,all adults with full capacity for civil conduct can choose a guardian for themselves by entering into a custody agreement with others.This means the introduction of the system of self-determined guardianship in perfect the guardianship system of our country law system at the same time,also better for the parties concerned to protect their own rights and interests by way of autonomy provides a new way.Although method established by the system of self-determined guardianship in our country,but its provisions are too principle and simple,it is not conducive to the implementation and operation,therefore,it is necessary through legal interpretation and further legislation to be perfect.As the core agreement of system of self-determined guardianship,it is the legal basis for the establishmentt of the system of self-determined guardianship.Look from the nature,the elements of the content of the system of self-determined guardianship shall enter into force belongs to the attached by the agency appointment contract,when there is no special provisions in law,content should apply by our country "contract law" the regulation of the agency appointment contract rules.The contract is mainly concerned with the disposition of persons and property after the loss or partial incapacity of certain adults,Of course,in the case of consensus and compliance with the law,the parties may make an agreement on the payment of guardianship and the conditions of resignation.In form,it is necessary to meet the written requirements stipulated by the law,and the oral form of the guardianship agreement does not have the legal effect.In addition,as a conditional legal act,the entry into force of the guardianship agreement shall be conditional upon the loss or partial incapacity of the guardian in the future as agreed in the agreement,In today's context,judge whether the ward has lost or partial incapacity not only from its ability to judge,it should also be comprehensive considering the other case,at the same time it must be declared in the application of the law,not by the parties or general civil subject to.Once theguardianship agreement comes into effect,the guardianship will be initiated and the guardian must begin to perform its duties.The guardian should follow two basic principles,namely,"respecting the principle of the will of the guardian" and "the principle of best interests".Under the guidance of these two principles,the guardian shall manage the property of the guardian,and in the aspect of personal affairs,the author proposes that under the authorization of the guardian,the guardian can have some medical decisions and make decisions on the simple medical affairs.The termination of the agreement shall include the following facts: the death of the guardian,the loss of the civil capacity of the guardian,and the expiration of the guardianship agreement,In addition,the cause of termination also includes the guardian's disqualification of guardianship for failing to perform the duties of guardianship or serious injury to the guardian's physical and mental interests.Of course,the litigant may also agree on the reasons for the termination of the contract,and the parties may terminate the contract at any time before it becomes effective.For the compulsory protection of a guardian who has lost or partially incapacitated himself,in the future,the legislation of our country should consider the legislation of other countries,introduce the system of custodian supervision,and make the establishment of such supervisors a procedural requirement for the effective implementation of the guardianship agreement.Guardianship supervisor may follow the guardians by selection,the selection of the ward had selected in the form of independent,when was not previously selected by guardian supervision,the court can be selected according to the principles of the most beneficial to be guardians guardianship supervisor.