The Research On Legal Status Of Trustee In Designed Guardianship Trusts

The Designed Guardianship system provided for in Article 33 of the Civil Code is derived from the comparative law system of enduring agency and is based on the concept of assisted decision-making,which fully reflects the principle of autonomy in private law.As the legislation does not balance the values of respect for autonomy and protection of interests,and the order of application of the principle of respect for the will and best interests is unclear,it is difficult to achieve the legislative objective of establishing the autonomy of the person in the Designed Guardianship system,which is one of the shortcomings of the system.This is one of the shortcomings of the system.In addition,China’s Guardianship Law suffers from a lack of procedural standards for the initiation,rights and obligations of guardianship and supervision of guardianship,and is unable to limit the agency risks inherent in the guardianship system provided.Practice has proven that asset management is central to controlling agency risk in the planned guardianship system,and the introduction of the trust system,which is a fiduciary legal relationship with the planned guardianship system and has the unique advantage of asset management and special use of the "the fiduciary duty to account for unauthorized profit",through the signing of the planned guardianship agreement and the exercise of the asset guardianship function by the trust as the asset administrator,is an effective means of overcoming the shortcomings of the Designed Guardianship system with regard to asset management.It is an effective way of filling the gaps in the system of Designed Guardianship by using the rules on fiduciary duties and responsibilities in trust law,which are fundamental to regulating trustee discretion and limiting the risk of abuse of power,to compensate for the absence of guardianship law and to control the risks of the Designed guardianship agency.The core of this article is to consider separately the two legal positions of the trustee of an Designed Guardianship trust: first,the trustee as a property administrator,by interpreting specific norms of guardianship law and trust law to limit the power of the trustee in terms of exercising authority,performing obligations and assuming liability,which is one of the ways to overcome the defects of the agency risk of the Designed Guardianship system;secondly,the trustee as supervisor of the guardianship on the one hand,and the trustee as administrator of property on the other.On the other hand,the trustee,as guardianship supervisor,exercises on the one hand the right to supervise other trustees as provided for in Article 36 of the Civil Code,and on the other hand is supervised by other trustees on the basis of the rights of the beneficiaries under the Trust Act,which is the second way of bridging the agency risk gap.In case of conflict between the trustee of an designed guardianship trust and other guardians resulting from the intersection of their functions,the private law principle of autonomy gives priority to the will of the person,and the trust deed is a fixed instrument of the will of the person,and the status of the trustee takes precedence over the status of the legal guardian under the authorization,who may supervise the actions of the trustee thereafter through the supervision mechanism.In the event of a conflict of status between the trustee and the other designed guardians,if the means of ascertaining the person’s will are exhausted,the principle of the best interests of the person must be interpreted in order to choose the appropriate way to manage the affairs.From this point of view,the introduction of a trust ensures that the person’s wishes are set out in a trust document on the one hand,and stimulates the guardian to explore the person’s wishes on the other,thus facilitating the achievement of the objectives of guardianship legislation.