| Article 33 of the General Principles of Civil Code stipulates that adults with full capacity to act may determine their own guardian in written form through prior consultation with their close relatives or other individuals or organizations willing to act as the guardian.And this guardian shall start to perform the duty when the adult is incapacitated or partially incapacitated.This regulation is called “Adult Designed Guardianship”.Since there are a few provisions on the adult designed guardianship in the General Principles of Civil Code,it is worth discussing and studying about how to apply this regulation,the possible problems in its application,the position of this system in adult guardianship and how to improve it.This article is based on the main line of the differences between the adult designed guardianship and durable power of attorney(or called lasting power of attorney in different countries),and then discusses the irrationality of the adult designed guardianship in our country.In the end,this article will discuss the necessity and feasibility to build the durable power of attorney in our country,and suggest to build this system as the alternative of the guardianship system.The first chapter discusses the subject of the adult designed guardianship.The first section is about the people making the agreement themselves.The first part startsfrom the mental ability and the nature of the guardianship system.From the two aspects,the person with limited capacity to act is not forbidden to apply this system,but there would still be some restrictions for him or her.And the second part is about the person with no capacity to act.This part expounds the existence of the theory of“Lichter Moment” and the abuse of the declaration of incapacity in the judicial system.The second section,based on the principle of true will and the legislative experience of Japan,considers that others can not sign the designed guardianship agreement for the person with limited capacity to act.The second chapter discusses the content of the adult designed guardianship,and clarifies that the guardian’s power of attorney should be limited in vital medical affairs and property affairs.Meanwhile,it also discusses whether the guardian has the obligation of actual care and management,and expounds the guardian should have the right to get remuneration in the guardianship.In the end,the last section discusses whether it is reasonable for a designed guardian to assume the liability of guardian in tort law,and discusses the nature and interpretation of this liability.The third chapter discusses the validity of the designed guardianship agreement.Firstly,this article thinks the agreement should be notarized.Secondly,the element of the agreement that it comes into effect when people lose the capacity to act is not reasonable.In addition,the article discusses the relationship between the designed guardianship and the legal guardianship,as well as the validity of the authorization when the agreement is invalid.The second section discusses the termination of the adult designed guardianship and the release of the guardian.In the fourth chapter,this article firstly discusses the position of the supervision in the whole system of adult designed guardianship,and then discusses the necessity and the way of the establishment of the supervision system from the perspectives of public supervision and private supervision.In the fifth chapter,this article discusses the establishment of the alternative measure of the guardianship,the durable power of attorney.Starting from the spirit and requirements of the Convention on the Rights of Persons with Disabilities(CRPD),this article reflects on the problems of realizing the purpose of the adultdesigned guardianship in China,expounds the advantages of the system of durable power of attorney,and finally makes suggestions on two important issues of the establishment of durable power of attorney: the classification of mental ability and the supervision system. |
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