On Intentional Custody Agreements

The Civil Code of the People’s Republic of China(hereinafter referred to as “the Civil Code” provides for an intentional guardianship system,but does not provide for an intentional guardianship agreement,which is the core of the intentional guardianship system.In the absence of specific regulatory guidance on intentional guardianship agreements,the study of intentional guardianship agreements becomes the focus of the ensuing research.The thesis is divided into five sections.The first chapter of the thesis examines the definition and current state of practice of intentional guardianship agreements.Firstly,although an intended guardianship agreement is essentially a power of attorney agreement,it also has its own special features,including the special status of the ward’s capacity after the intended guardianship agreement takes effect and the special content of the agreement.Secondly,it summarises the problems in the application of Article 33 of the Civil Code,including the narrow scope of the subject matter and the simplicity of the written form.The second chapter of the thesis examines the subjects of the intended guardianship agreement,including the guardian and the ward.The scope of guardianship should not be limited to the provisions of Article 24 of the Civil Code;a person of limited capacity with the corresponding capacity of meaning can be the subject of an intended guardianship agreement-the ward-while a person without civil capacity cannot be the ward.The third chapter of the thesis examines the formation and validity of an intentional guardianship agreement.The written form of an intentional guardianship agreement is too rudimentary and can be notarised as an element of the establishment of an intentional guardianship agreement;there are many drawbacks to the application of the declaration of capacity procedure in the area of intentional guardianship and the entry into force of an intentional guardianship agreement can be determined by a notary.The fourth chapter of the thesis examines the main rights and obligations of the guardian in an intended guardianship agreement.The right of resignation of the guardian and the guardian’s obligation to make an inventory of his or her property are clarified as ordinary provisions;the right of the guardian to administer his or her property,the right to make medical decisions and the actual obligation to take care of his or her life are clarified as occasional provisions,and the guardian has these rights and needs to fulfil the relevant obligations only if the parties have agreed to do so.The fifth chapter of the thesis examines the termination of an intended guardianship agreement.The termination of an intended guardianship agreement includes the dissolution of the intended guardianship agreement and he guardian’s inability to perform the duties of guardianship.Given the inequality of capacity between the parties after the intentional guardianship agreement has come into effect,the guardian does not have the right to terminate the intended guardianship agreement at will.