Study On The New Theory Of The Durable Power Of Attorney In USA

As we all know, China has become an aging society. All problems around the older people, such as day-to-day transaction, medical and health care, property management, have brought the needs for a new legal system. The durable power of attorney, which is first established in USA, is a new system to handle with the human aging challenges. As an alternative measure to guardianship, the durable power of attorney and the legal guardianship complement to each other. They together constitute the protection for the adults. This paper aims to construct the freewill guardianship of China through the deep study of the durable power of attorney in USA. This paper is divided into five parts, as follows:The first part is an overview of the durable power of attorney in USA including the conception, categories and its relationship with other measures. Through the introduction of the durable power of attorney, we can see its functions and advantages. This part will pave the way for the establishment of this system in China.The second part is the history of the durable power of attorney in USA. From its generation to now, it has been fifty to sixty years. From the bud to the states legislatures and to the uniform legislature, it presented the lasting vitality. Also during the past time, the system exposed some defects. When establishing the system, China should not only learn from the advanced practice but also pay attention to the defects of the system.The third part is the main contents of the durable power of attorney. From the Uniform Power of Attorney Act, we can see the present of the system. Based on the position as an alternative to the legal guardianship, it has developed into a perfect system. With the advanced idea, rich content and standardized form, the system will make an important reference for China.The fourth part is about the durable power of attorney and the adult guardianship in China. As alternatives to guardianship, the durable power of attorney and other measures, such as trust, living will and joint account, constitute the freewill guardianship for the adult in USA. They and the legal guardianship constitute the protection for the adult. However, in China, the only protection for adult is legal guardianship, and the concept of the guardianship lags behind. Thus, we should not only perfect the legal guardianship as soon as possible but also establish the freewill guardianship system in China.The fifth part is about the construction of the freewill guardianship in China. Based on the durable power of attorney in USA, Chinese scholarship’s research and the current legal system, this part will build up China’s freewill guardianship system.