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- 저자 : 미나가타미치코 ( Minakata (검색결과 1 건)
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<심포지엄 특집> 고령화 사회와 법 : 성년후견인의 법적 권한과 의무 -의지할 데가 없는 고령자의 신상감호실무에서-
미나가타미치코 ( Minakata,Michiko ) 아세아여성법학회 2014 아세아여성법학 Vol.17 No.-
According to the “General situation of the adult guardianship-related cases”, published by Supreme Court General Secretariat Family Bureau, 176,564 people are under an adult guardianship in 2013. In the year 2013 the guardians who are relatives amounted to approximately 42.2% and third party guardians 57.8%. In the year 2012, the number of third party guardians exceeded that of relative guardians for the first time. This tendency is accelerated year by year. When the system of adult guardianship started, relative guardians occupied more than 90% and third party guardians did not even reach 10%. I think that aging and the decrease of the household member is one of the factors that caused the number of third party guardians to exceed the number of relative guardians. According to the National Census of Japan 2010 the elderly people over the age of 65 years old occupy 23.0%(29,246,000)in the total population(128,057,352). The numbers of a family member per household in the densely populated areas are 2.27. 14 years have passed since the new adult guardianship was enforced. Nowadays such problems, disqualification of adult ward, medical consent, legal act after death and complaints, etc. are discussed and the revision of the system is required. These problems concern the right of adult ward as well as the practice of guardianship. The former problems must be solved by the revision of law. Last year, the Public Office Election Law was amended regarding the suffrage of adult ward. On the other hand, I consider that the latter problems can be dealt with by the appropriate interpretation and operation of the ideas of adult guardianship law. What are the legal authority and the obligation of adult guardians? Is it impossible for adult guardians to support the person if they don’t have legal authority? Is there a ground other than legal authority that adult guardians can use to support the person? For three years, as a third party guardian I have closely taken care of one elderly who doesn’t have any kin. The physical custody practice included the tasks of sending her to senior housing, processing her lease, disposing of her real estate, making medical contracts and signing the medical treatment consent on behalf of her, etc. Once a year, I have submitted a guardianship office report to the family court. Mainly based on my reports, I would like to discuss the legal authority and obligation of a guardian. In the last three years, I persuaded her with restraint based on the idea of the law. I have supported her decision-making absolutely according to her subjective interest. When a decision-making is required on behalf of her, I devoted myself to take the leadership in coordinating the people involved in taking care of her. I would like to name such activities as a “close guardian”. Even now, elders without kin are cared by medical personnel, elderly housing staffs, care staffs and an adult guardian. What an adult guardian needs is not an overload of legal authority. What is needed is the competence as a leader to become the cornerstone of the legal and social network. Only such qualities of a guardian can help the elderly and his (or her)family who are isolated from the society due to their disability of making judgment. An adult guardian with such competence can properly evaluate medical personnel, elderly housing staffs and care takers. I believe that an adult guardian is responsible to gain such competences. Finally, I tried to consider a little about the elderlies who have kin. Even under the current law, there are many families who are taking care of elders without resort to adult guardianships. However, in the current system after a guardianship is appointed for one-time act such as heritage division, adult guardianship continues until the elderly dies. As a result, it could lead to suppression of the freedom of the elderly. After using the guardianship as one-time-only juridical act, the adult guardianship must be ended at that time. Specific guardianship system in Korea, which entered into force in July 2013, is very interesting and provides suggestions to solve such problems mentioned above. In Specific Guardianship, an attorney is appointed for one-time-only juridical act, such as heritage division. Specific Guardianship allows its guardianship function to end after such juridical task is completed. The reports submitted by adult guardians to the family court in the last years and in the future could help to develop and improve the quality of adult guardianship system. Only when the elderlies could feel the benefits of the adult guardianship system, the new adult guardianship will be trusted and will be embedded in the society.
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