The Existing Problems And Perfect Countermeasures Of My Country's Will-determined Guardianship System

By monitoring system in China,this paper aims to analysis the existing problems and causes,combined with the arbitrary guardianship system in Japan,Canada,the common decision system and the sustainability of the United States agency system research,contact the notarial proof effect,try to frame conforms to our country’s characteristic of the guardianship system,and by this article is divided into three parts altogether,the concrete content is as follows:The first part is an overview of the intentional guardianship system in China.On the one hand,by combining with the current legislative status of the intentional guardianship system in China,the function and necessity of the intentional guardianship system are shown,and the shortcomings of the intentional guardianship system in China are found out to pave the way for the improvement of the intentional guardianship system in China.On the other hand,through the analysis of the foreign intentional guardianship system,the author draws out the enlightenment to improve the intentional guardianship system in China.Whether it is the arbitrary guardianship system in Japan,the co-decision system in Canada,or the sustainable proxy system in the United States,all of them have developed for many years and have a complete and feasible institutional system and framework.At the same time,the existence of different systems has its cultural factors and social background,but also has its shining points and shortcomings.In order to improve the intentional guardianship system in China,we should take the essence and discard the dregs,combine the actual conditions of our country and the proof effect of notarization,so as to provide some suggestions for solving the problems in the intentional guardianship system.The second part is about the existing problems under the present intentional guardianship system in China.This paper analyzes the current development status of the intentional guardianship system in China,finds out the shortcomings and shortcomings of the intentional guardianship system,and expounds the problems of the intentional guardianship system in China from the perspectives of legislation and reality.In terms of legislation system,China’s intentional guardianship system is faced with such problems as unclear application sequence of various guardianship systems,lack of establishment and effective procedures of intentional guardianship agreement,unclear termination conditions of intentional guardianship agreement,lack of supervision mechanism to prevent abuse of guardianship and so on.The main practical dilemma in the practice of notarization lies in the lack of objects for the ward to perform the duty of guardianship and the disorderly format of the documents that notarization would like to appoint the guardianship.The third part is about the proposal of the guardianship system by perfecting,over that of the guardianship system by priority,the establishment of the guardianship agreement by and effective procedures,the guardianship by agreement,perfecting the supervision by the termination of the supervision of the system,establishing community guardian database and format of the monitoring instrument by elements and so on six aspects.First,in the application of various guardianship systems,in order to respect the true will of the ward,the intended guardianship should be applied first,and the most favorable guardianship system should be applied in special cases.The second is to pay attention to the establishment and effectiveness of the determined guardianship agreement.In order to ensure the authenticity and legality,the notary certificate filing procedure is added.When the guardianship conditions are fulfilled,the guardian applies for the intentional guardianship notarization to the notary office in the place where the ward is domicile.The third is to analyze the requirements of the termination of the intentional guardianship agreement,starting from the two aspects of the natural termination caused by factual factors and the special termination caused by human will,and solve the problem of whether the agreement concluded by the guardian at the same time leads to the termination of the previous agreement and the issue of the right of arbitrary termination.Fourthly,improve the supervision system of intentional guardianship,establish three universal procedures of notarization supervision before taking effect,family supervision after taking effect and judicial relief,and set certain restrictions by the way of notarization in escrow and notarization of wills for some special major guardianship matters,such as the right to dispose of property and the right to medical consent.To realize the purpose of respecting the true will of the ward and using the ward’s property reasonably;Fifth,the establishment of the community guardian database to provide convenience for the five guarantees of the elderly guardianship;Sixth,the establishment of documents related to intentional guardianship elements to provide convenience for notarization.By starting with the problems existing in the existing intentional guardianship system in China and combining with my notary work experience,this paper puts forward some views and opinions on improving the intentional guardianship system,hoping to provide some effective ideas for the intentional guardianship system.