Research On The Legal Improvement Of The Establishment Standards Of Adult Guardianship In My Country

"Respect for self-determination" and "maintain a normal life" as the modern concept of adult guardianship have been absorbed by more and more countries(regions)adult guardianship legislation.Respecting the residual capacity of the adult and supporting them to participate in social life are the primary considerations for the standard of adult guardianship in various countries(regions).As an important part of the adult guardianship system,the standard of adult guardianship must be guided by the principle of supporting adults’ self-determination and less restrictive intervention,so as to meet the needs of adults with different degrees of obstacles in using the guardianship system.At present,the problems of population aging in China is becoming more and more serious which lead to frequent legal and social problems.The current standards for adult guardianship in China,which adopt the standard of competence and take the declaration of the lack of competence as the premise,are not only lead to the narrow scope of applicable objects,but also fail to reflect the complexity of adult capacity and provide institutional guarantee for the physically disabled and the elderly with progressive decline in physical ability and intelligence.In addition,the practice of depriving or restricting the capacity of adults with disabilities and isolating them from social life also fails to fully respect the residual capacity of adults with disabilities,which is also contrary to the basic spirit of the UN Convention on the Rights of Persons with Disabilities,which fully respects the human rights of disabled persons.Improving the standards of adult guardianship in China should guide by the concept of “respect for self-determination” and “maintain a normal life”,basing on the principle of supporting the decision of the adult disabled and the least restrictive intervention,separating the adult guardianship system from the lack of capacity reporting system,replacing functional competence standards with functional capacity standards.The full text is divided into five parts.The first part explains the concept of adult guardianship,the connotation of standard of adult guardianship and the construction principles.The second part summarizes the reasons and trends of modern adult guardianship reform.The third part introduces the main types of standards of modern adult guardianship,which are medical standards,decision-making capacity standards and functional capacity standards,proposes that functional capacity standards should be used as the standards of adult guardianship,and explain the specific application of functional capacity standards in practice.The fourth part introduces and analyzes the legislation and judicial status of the current adult guardianship standards,and points out the defects of the standards of adult guardianship in China.The fifth part is based on the defects of China’s current adult guardianship standards,guided by the advanced legislation of extraterritorial adult guardianship,the author proposes to improve the standard of adult guardianship in China from the perspectives of concept renewal,lacking of behavioral declaring system and adult guardianship system,functional capacity standard instead of competence standard,and reconstruction of adult capacity assessment system.