On The Contract Of The Transferred Adult Voluntary Gardianship Under The Background Of Civil Code

The current adult guardianship system in China suffers from a narrow scope of application due to the limitations of a simple type of capacity determination system.There is also an objective need for the elderly and physically challenged people to receive assistance from the guardianship system.The idea of continuous agency granting system is adopted for the transfer type of adult guardianship,which advances the time when the contract of transfer type of adult guardianship takes effect to the time when the contract of transfer type of adult guardianship is established,thus bypassing the simple type of capacity determination system and solving the problem of the narrow scope of application of the adult guardianship system.Therefore,in the context of the Civil Code,it is important to construct a system of rules for the transfer of adult guardianship through the method of legal interpretation for the improvement of the entire adult guardianship system.The contract of transferred adult guardianship is based on the equal status of the parties to the contract,and the obligation of children to support their parents based on kinship is not suitable to be agreed as the content of the contract of transferred adult guardianship.The contract of transfer of adult guardianship is an expansion of the contract of trust,and the relevant provisions of the Civil Code on the contract of trust can be applied.Civil capacity should include both meaning formation and meaning expression,and the lack of any one of them should be considered as insufficient capacity.Notarization can be used as a way to confirm that the principal has full civil capacity,but in order to control the cost of the system,it is not appropriate to use notarization as a formal element of the transfer-type adult intended guardianship contract.In addition to the loss or partial loss of civil capacity of the person under guardianship,the conditions for a contract of transfer of adult guardianship to be effective must also satisfy the conditions of the guardian’s fitness and the legality of the content of the guardianship.Adult intended guardianship and adult legal guardianship can co-exist,and adult intended guardianship takes precedence over adult legal guardianship in terms of guardianship content.The guardianship supervisory role in a transfer of adult guardianship contract should be assumed by the next of kin in the legal guardianship line.The reasons for the termination of the transfer contract of adult guardianship can be referred to the provisions of the termination of the commission contract.If the ward still has a need for guardianship,the legal guardianship shall fill the gap in guardianship caused by the termination of the intended guardianship.