Research On The Elderly Guardianship System

In recent years,the social situation of deep aging has aroused people’s extensive attention to the protection of the rights and interests of the elderly.The physiological characteristics of the elderly determine that their cognitive ability and meaning ability will gradually weaken with age.The guardianship system of the elderly has a unique institutional function to protect the legitimate rights and interests of the elderly.However,the traditional guardianship system for the elderly is confined to legal guardianship,and its institutional functions are limited in practice,so it is imperative for us to reform and update the system.Since Article 26 of the Law of the People’s Republic of China on the Protection of the Rights and Interests of the Elderly(hereinafter referred to as the Law on the Protection of the Rights and Interests of the Elderly)amended in 2012 directly stipulated the voluntary guardianship system for the elderly for the first time,Article 33 of the General Provisions of the Civil Law of the People’s Republic of China(hereinafter referred to as the General Provisions of the Civil Law)promulgated in 2017 further established the voluntary guardianship system for adults,including the voluntary guardianship of the elderly.Article 33 of the Civil Code of the People’s Republic of China promulgated in 2020(hereinafter referred to as the "Civil Code")again establishes adult freewill guardianship system including the elderly freewill guardianship,thus laying a solid legal foundation for the development of the elderly freewill guardianship system of our country.It plays an important guiding role in improving the monitoring mode of the elderly.The so-called voluntary guardianship system of the elderly refers to the civil law system in which the elderly with full capacity for civil conduct determine their guardian in written form according to their will and others in order to safeguard their legitimate rights and interests,and the guardian performs the guardianship duty when the elderly lose or partially lose their capacity for civil conduct in the future.However,while affirming the legislative progress of the voluntary guardianship system for the elderly,we should also realize that there is only one basic provision in the Law on the Protection of the Rights and Interests of the Elderly and the Civil Code on the voluntary guardianship system for the elderly,which only makes a principle and framework provision for the voluntary guardianship of the elderly,but lacks concrete and operational rules.Therefore,to give full play to the functions of the elderly free guardianship system in our country,it is necessary to research and discuss the system based on the practice of our country’s elderly free guardianship.Based on the basic theories and typical case concerning freewill guardianship,this paper will make a deep analysis of the problems and shortcomings of our country’s freewill guardianship system in practice,and also discusses the countermeasures and methods of the problems in our country’s freewill guardianship system based on the investigation and reference of related legislation and practice of foreign countries.Through research,this paper finds that the voluntary guardianship system of the elderly in our country has the following problems: the voluntary guardianship legislation is not scientific enough,the voluntary guardianship agreement provisions are too general,the qualifications of guardian are too low,the lack of public procedure of guardian,the insufficient guardianship supervision mechanism,the accreditation procedure of the disability of the elderly and so on.Therefore,this paper suggests that it should highlight the characteristics of the elderly group on legislation style and divide and govern the voluntary guardianship system of our country between the elderly and the adult voluntary guardianship system.In determining the content of the guardianship agreement,the specific content and necessary provisions of the guardianship should be clearly stipulated.It is determined that the qualification conditions of guardians should be improved and the restrictive conditions should be clearly stipulated;A clear and unified guardian registration record should be established on the issue of the public announcement procedure of the appointed guardian;The supervision mechanism of public and private forces should be established on the problem of fixed supervision mechanism.The people’s court should make it clear that the determination and declaration of disability of the elderly should be unified.