Study On The Contract Of Guardianship For The Elderly

The earliest Chinese intentioned guardianship system was included in Article 26 of the Law on the Protection of Rights and Interests of the Aged and based on this legislative experience Article 33 of the General Rules of Civil Law improved it and included it into the new adult guardianship system.At present,the intended guardianship system in China is still in the preliminary state of construction without detailed norms and clear procedures so that the personal relation attribute of intended guardianship agreement cannot be regulated by its general provisions and it cannot be presumed that the principal has the judging ability to conclude the agreement.The undefined guardianship matters and unavailable agreed scope in the elderly intended guardianship agreement impede the application of the intentional guardianship system,so it is necessary to improve relevant provisions on the elderly intended guardianship agreement to protect the legitimate rights and interests of the elderly from infringement.This research focuses on the elderly intended guardianship agreement to elaborate relevant issues involved and put forward legal advice based on the legislative experience of other countries to help China improve the elderly intended guardianship agreement.The first part introduces the research background and significance of the elderly intended guardianship agreement and reviews relevant Chinese and foreign literature to determine the research methodology.The second part elaborates the basic concepts of the elderly intended guardianship agreement,clarifies its nature,and compares with other relevant contracts to confirm its irreplaceability.Based on the provisions of the intended guardianship system and combined with the case analysis of applied effective elderly guardianship agreements,the third part expounds the norms of the agreement as well as the absence of supporting systems.The fourth part studies relevant legal provisions of the United States,the United Kingdom,and Japan and combines with the practice of China to propose that supporting systems are required in addition to the improvement of the elderly intended guardianship agreement system.The fifth part proposes recommendations for the improvement of the problems existing in the elderly intended guardianship agreement.Specifically,to solve the problems of agreement norms,the qualifications of the intended guardian should be defined,as well as the entrusted matters,the capacity state of the principal when the guardianship agreement is concluded,and theprocedures for the guardianship agreement to come into effect;to solve the problems of absent supporting systems,a rational supervision mechanism should be established and the notary system should be improved.