Study On The System Of Intended Guardianship For Adults In China

The traditional guardianship system is facing new challenges,prompted by the ageing of society and the new international concept of human rights,and the system of intentional guardianship of adults is being born out of change.This new guardianship system is scientific and rational,respecting the age and the full expression of the real needs of people with physical and mental disabilities,while giving priority to the free will of the person under guardianship.Since the implementation of our Civil Code,the practical application of adult guardianship has only increased,which is the most direct response to the legislation.However,as a relatively new system,with the depth of judicial practice,a series of shortcomings have gradually been revealed,leading to controversial application and thus hindering the operation of the system.This article argues that,on the basis of the existing legislation,it is necessary to further explore the ways in which the system of intended guardianship for adults can be implemented in practice and to improve the normative guidelines.Following these lines of thought,the paper is divided into three parts.In the first part,three typical cases related to adult guardianship in judicial practice are selected and briefly introduced,and then the controversial points are analysed,pointing out that there are indeed a series of problems in the practical application of the system,mainly including the understanding of the content of the provisions,the validity of the guardianship agreement and the supervision of guardianship.The second part analyses the shortcomings of the system on the basis of the current legislative situation.Firstly,in terms of the scope of the subject matter,the system of intended guardianship should respect the age and the real needs of the physically and mentally challenged,and it is not advisable to restrict the subject matter of the ward by the criterion of full civil capacity.Secondly,the core content of the agreement and the requirements for its entry into force,as represented by personal care,property management and representation in medical matters,are too vague.In the third part,taking into account the actual situation in China,the following suggestions are made to improve the system of intended guardianship:firstly,to break through the typological rules of determining capacity,to expand the scope of the ward,and to strictly consider the entry requirements of the intended guardian;secondly,to refine the distribution of rights and obligations between the intended guardian and the ward,to take into account the capacity of the ward and the true will of the ward,to increase the notary public procedure,and to clarify the specific reasons and procedures for the termination of the agreement;thirdly,to choose a two-track supervision model combining private supervision and public supervision,to clarify the rights and duties of the two types of supervisory bodies,and to determine the scope of supervision targets.Thirdly,a dual supervision model combining private and public supervision should be chosen,the rights and duties of both types of supervisors should be clarified,and the scope of supervision should be determined.