Research About The Alternative System Of Trust On Property Management In Elderly Guardianship

The basic concept of adult guardianship is “protection”,which stipulates that the person with disabilities shall not engage in juristic acts,for the purpose of preventing adults with mental disabilities from carrying out behaviors that are incompatible with their abilities and harmful to their legitimate rights.Adult legal guardianship completely ignores the will of the person under guardianship,who shall not participate in civil life.Because of lacking in supporting system,the adult voluntary guardianship has become an “orphan”,which is hard to apply.With the development of human rights and psychiatry,many countries have realized that the adult guardianship infringes the interests of the pupil under the guise of “protection”,and have carried out adult guardianship reforms one after another.China has entered the period of moderate aging.Making the elderly whose physical function decreases and recognition ability declines aging dignifiedly and gracefully has become social concern.As one of the tools of property planning,the trust can freeze one’s will,realize the preservation and appreciation of property,and play a role in replacing the property management of elderly guardianship.Firstly,this paper focuses on situation of the elder’s property management,relevant legislation,and the shortcomings of the elderly guardianship property management system.It has become a social phenomenon that the elderly suffer from property damage from external and internal due to lack of judgment.However,the existing property guardianship rules are insufficient and the applicable subject of property guardianship is limited,which fails to provide sufficient and appropriate protection for the elderly.The second part proposes that the alternative system of trust on property management to solve the above questions.Firstly,from the institutional level,it compares and analyzes the characteristics of trust,the nature of guardianship trust and the function of trust.Then,theoretically,it expounds the necessity of trust support for elderly care.Adults are presumed to have civil capacity,and their right to self-determination should be fully respected,including pre-planning of property before they become incapacitated.Even for subjects with mental disabilities,the least restrictive measures should be taken to assist them in making decisions.This is the trend and concept of adult guardianship reform,and it is also the theoretical basis that trust supports elderly guardianship.Under the trust relationship,the intention of the trustor is frozen.The trustees are obliged to manage the property,which solves the problem of personal discretion being violated caused by adult guardianship.The third part discusses how trusts can play an alternative function and realize their application in the aging society.The article firstly discusses the rights and obligations of the trustee in the administration of property,compared with the guardian,the trustee enjoys full discretion,assumes heavier duty of loyalty,and the beneficiary’s right to relief is broader.At the same time,the article introduces the existing guardianship trust practice in our country and the trust products used to support elderly guardianship in comparative law.Such trust products have the characteristics of safety,professionalism and continuity,which can effectively avoid the drawbacks caused by initiating adult guardianship by combining the system of arranging personal care such as intentional guardianship agreements,continuous agency grants,and medical wills.The fourth part puts forward some suggestions based on the problems existing in the operation of guardianship trust in China.